[Cite as State v. Godsey, 2024-Ohio-629.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO, CASE NO. 1-22-59 PLAINTIFF-APPELLEE,
v.
DRAYVONTE M. GODSEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2021 0012
Judgment Affirmed
Date of Decision: February 20, 2024
APPEARANCES:
April F. Campbell for Appellant
John R. Willamowski, Jr. for Appellee Case No. 1-22-59
MILLER, J.
{¶1} Defendant-Appellant, Drayvonte Godsey (“Godsey”), appeals his
convictions in the Allen County Court of Common Pleas. Following a jury trial,
Godsey was found guilty of three offenses: robbery, domestic violence, and having
weapons while under disability. This appeal focuses on his robbery conviction. For
the reasons that follow, we affirm.
I. FACTS AND PROCEDURAL HISTORY
{¶2} Godsey and the victim, DeQuaisha Wilson (“Wilson”), have a son
together. On or about January 1, 2021, in Lima, Ohio, Godsey called Wilson to tell
her he was coming over to see their son, but Wilson told him their son was asleep,
thus implying he should not come over. Godsey came to the house anyway, and
Wilson opened the door because she did not want Godsey to break down her door.
{¶3} According to Wilson’s trial testimony, Godsey came in, put his hands
on her, slapped her, hit her in the face and all over her body, and drug her down the
stairs by the leg while still beating her. Wilson’s phone was right beside her on the
stairs, and Godsey grabbed her phone and left. Wilson testified that she was not
reaching for the phone when Godsey took it (and he did not take it “aggressively”),
but Godsey did grab her phone as he was leaving. Wilson suffered injuries,
including a swollen face. Because Godsey had taken her phone, Wilson had to go
to another location around the corner from her home to call her mother for
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assistance. The phone was later returned to Wilson. Wilson made a report to the
police regarding what had occurred, and she also was interviewed by a detective
about it a few days later.1
{¶4} The jury convicted Godsey of (1) having weapons while under
disability, in violation of R.C 2923.13(A)(3), a third-degree felony; (2) robbery, in
violation of R.C. 2911.02(A)(2), a second-degree felony; and (3) domestic violence,
in violation of R.C. 2919.25(A), a first-degree misdemeanor.2 Godsey was
sentenced accordingly for the three offenses. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶5} Godsey raises four assignments of error for our review:
First Assignment of Error
The State’s evidence that Godsey committed robbery was legally insufficient as a matter of law.
Second Assignment of Error
The evidence also weighed manifestly against convicting Godsey.
1 At trial, the court called Wilson as a court witness, without objection. (June 6, 2022 Tr. at 3, 173). Wilson was the first witness to testify during the trial. 2 The jury was unable to reach a verdict on two counts of grand theft when the property is a firearm or dangerous ordnance, in violation of R.C. 2913.02(A)(1) and (B)(4). Those two counts, as well as the weapons under disability charge, arose from a November 2020 incident wholly separate from the January 1, 2021 incident involving the phone. Regarding those two counts, Wilson told police Godsey had taken her two guns, but at trial she testified she actually had “misplaced the guns”—which “were in a tote” she had given to Godsey without him knowing the guns were in the tote. (June 6, 2020 Tr. at 185, 190-92, 200).
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Third Assignment of Error
Godsey’s conviction should be reversed because his trial counsel was ineffective in a manner that prejudiced Godsey. Trial counsel failed to object to inadmissible hearsay through officers recounting what the victim told them. Trial counsel failed to object to inadmissible testimony through the detective about his expertise with domestic violence victims, despite it being damaging to Godsey’s defense and in violation of Crim.R. 16(K). Trial counsel failed to request a theft instruction for Godsey’s robbery count.
Fourth Assignment of Error
The Court committed prejudicial error by not instructing the jury on the lesser included offense of theft, for Godsey’s robbery count.
III. DISCUSSION
A. First Assignment of Error
{¶6} In the first assignment of error, Godsey argues the State’s evidence that
he committed robbery was legally insufficient as a matter of law. At trial, Godsey
had moved for acquittal under Crim.R. 29 at the close of the State’s case-in-chief,
and he renewed that motion after deciding not to call witnesses in his defense. The
trial court denied the motions.
1. Standard of Review
{¶7} “A motion for acquittal under Crim.R. 29(A) is governed by the same
standard as the one for determining whether a verdict is supported by sufficient
evidence.” State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, ¶ 37, citing State
v. Carter, 72 Ohio St.3d 545, 553, 651 N.E.2d 965 (1995) and State v. Thompkins,
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78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). A sufficiency challenge disputes
whether a party met its burden of production at trial. State v. Messenger, 171 Ohio
St.3d 227, 2022-Ohio-4562, ¶ 26. “In reviewing a record for sufficiency, ‘[t]he
relevant inquiry is whether, after viewing the evidence in a light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.’” Tenace at ¶ 37, quoting State v.
Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
Thus, “[i]n assessing the sufficiency of the evidence, we do not resolve evidentiary
conflicts or assess the credibility of witnesses.” State v. Jackson, 3d Dist. Allen No.
1-22-27, 2023-Ohio-2193, ¶ 26; see also Jenks at 279.
2. Applicable Law
{¶8} As stated above, Godsey was convicted of violating R.C.
2911.02(A)(2). The statute provides:
(A) No person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall do any of the following: * * * (2) Inflict, attempt to inflict, or threaten to inflict physical harm on another[.]
The Committee Comment to the statute explains that “the difference between theft
and robbery is an element of actual or potential harm to persons.”
{¶9} The statute “expressly predicates every robbery on the elements of a
completed or attempted ‘theft offense,’ including all culpable mental states.” State
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v. Tolliver, 140 Ohio St.3d 420, 2014-Ohio-3744, ¶ 8. The applicable theft statute
provides:
No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services * * * [w]ithout the consent of the owner or person authorized to give consent[.]
R.C. 2913.02(A)(1). Thus, the culpable mental state for the theft offense here
“includes the mental states of ‘purpose’ and ‘knowingly.’” Tolliver at ¶ 9.
{¶10} The State is not required to also prove a culpable mental state with
respect to robbery’s physical-harm element in R.C. 2911.02(A)(2)—at least when
the charge involves inflicting or threatening to inflict harm on another, as is the case
here. See id. at ¶ 10, 18, 22 (“[t]he section defining robbery makes clear which
elements of the offense require proof of culpability, and the force element in R.C.
2911.02(A)(3) is not one of them); compare R.C. 2911.02(A)(3) (“[u]se or threaten
the immediate use of force against another”) with R.C. 2911.02(A)(2) (“[i]nflict,
attempt to inflict, or threaten to inflict physical harm on another”). Finally, the Ohio
Supreme Court has explained that determinations under the robbery statute are fact-
specific. State v. Thomas, 106 Ohio St.3d 133, 2005-Ohio-4106, ¶ 13 (“[o]ur
conclusion in this case is fact-specific, as all determinations under this statute [R.C.
2911.02(A)] must be”). This case is no exception.
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3. Analysis
{¶11} According to Godsey, because he “did not assault Wilson to
accomplish a theft, he should not have been convicted of robbery.” (Appellant’s
Brief at 1). While he concedes he committed assault and was therefore properly
convicted of domestic violence, Godsey argues he did not commit robbery because
he assaulted Wilson and then committed the theft of her phone. (Id. at 8). He also
asserts he “did not possess the specific intent to deprive Wilson of her phone and
did not facilitate depriving Wilson of her phone via the assault.” (Id.)
{¶12} As an initial matter, the evidence shows Godsey is incorrect in
asserting he did not possess the specific intent to deprive Wilson of her phone. A
rational trier of fact certainly could have found the State proved, beyond a
reasonable doubt, that Godsey committed theft in violation of R.C. 2913.02(A)(1).
Among other evidence, Wilson’s testimony at trial demonstrated that Godsey,
without consent from the injured Wilson, grabbed her phone and left her house with
it (depriving Wilson of both her property and its services).
{¶13} Regarding Godsey’s allegation he did not intend to assault Wilson in
order to steal her phone, again, the State is not required to prove a culpable mental
state for inflicting physical harm on another. See R.C. 2911.02(A)(2); Tolliver, 140
Ohio St.3d 420, 2014-Ohio-3744, at ¶ 10. The robbery statute does not require the
State to provide evidence that the defendant inflicted physical harm in furtherance
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of the purpose to commit the theft offense. Thomas, 106 Ohio St.3d 133, 2005-
Ohio-4106, at ¶ 13 (the robbery statute “plainly does not require” that the force
attendant to the theft offense be inflicted in furtherance of a purpose to deprive
another of property); State v. Stevens, 11th Dist. Portage No. 2020-P-0043, 2021-
Ohio-2643, ¶ 90 (based on Thomas, “the aggravated robbery statute does not require
evidence that [defendant] attempted to inflict serious physical harm in furtherance
of the theft offense”).3
{¶14} The statute also does not require that the theft precede the physical
harm in order to commit physical-harm robbery. See R.C. 2911.02(A)(2); Stevens,
2021-Ohio-2643, at ¶ 77, 88-91 (rejecting the defendant’s argument that “the state
failed to present sufficient evidence of aggravated robbery because any harm to [the
victim] occurred prior to [defendant’s] alleged theft”); State v. Salvatore, 8th Dist.
Cuyahoga No. 49519, 1985 WL 8632, *4-5 (Sept. 26, 1985) (affirming robbery
conviction where, after beating and raping the victim, the defendant then took the
coins that had fallen from the victim’s pocket). In other words, it does not matter
whether Godsey physically harmed Wilson and then committed the theft versus
committed the theft and then physically harmed Wilson.
3 The relevant portions of the robbery and aggravated robbery statutes, for purposes of this appeal, are virtually identical. Compare R.C. 2911.02(A)(2) with R.C. 2911.01(A)(3); see also Stevens, 2021-Ohio- 2643, at ¶ 90 (explaining the robbery statute and aggravated robbery statute have similar statutory language).
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{¶15} Instead, the pertinent question becomes: in committing the theft
offense (i.e., depriving Wilson of her phone), did Godsey “[i]nflict, attempt to
inflict, or threaten to inflict physical harm on” Wilson. R.C. 2911.02(A)(2).
Caselaw and a common sense reading of the robbery statute leads to the conclusion
that a defendant need not “[i]nflict, attempt to inflict, or threaten to inflict physical
harm on another” at the exact same instant that the defendant is physically taking
property from its owner in order to be found guilty of physical-harm robbery. Id.
We have previously said so in explaining that “‘simultaneously’ is not an element
of robbery.” State v. Prude, 3d Dist. Marion No. 9-90-76, 1991 WL 216794, *3
(Sept. 16, 1991); see also State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, ¶
205-06 (rejecting arguments that “the intent to steal must coincide with the infliction
of physical harm on the victim” and that “physical harm afflicted before the
formation of an intent to commit theft does not elevate a subsequent theft into an
aggravated robbery”). However, the statute does require that a defendant “[i]nflict,
attempt to inflict, or threaten to inflict physical harm on another” “in attempting or
committing a theft offense or in fleeing immediately after the attempt or offense.”
R.C. 2911.02(A)(2).
{¶16} After viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could find, beyond a reasonable doubt, that in
committing the theft offense, Godsey inflicted physical harm on Wilson. Id. It is
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reasonable to view Wilson’s testimony as proving Godsey inflicted physical harm
on her in committing the theft offense (e.g., Godsey took the phone as he stopped
hitting the battered Wilson, then left). Wilson’s testimony does not show there was
a delay or lapse between Godsey afflicting physical harm on her and taking her
phone. In other words, a jury could reasonable find it was all part of a continuous
event, with the harm and theft taking place in the same immediate period of time.
{¶17} The evidence here contrasts with, for example, an Eighth District case
where the appellate court found insufficient evidence the defendant committed
aggravated robbery. State v. Madera, 8th Dist. Cuyahoga No. 93764, 2010-Ohio-
4884, ¶ 23. In Madera, after the defendant put some of the victim’s money in his
pocket, the victim “sat on the couch for a period of time, and then he and [defendant]
began arguing again” and “[t]he argument escalated into a physical altercation.” Id.
at ¶ 22. The appellate court explained:
Under these specific facts, we find that the lapse in time between the theft and the use of force by Madera on Gould is sufficient to justify reversal of Madera’s convictions for aggravated robbery. There was enough delay between the two actions that they could not be considered contemporaneous nor part of ‘a single continuous transaction.’
Id. at ¶ 23, citing State v. McDonald, 8th Dist. Cuyahoga No. 78939, 2001 WL
1671151 (Dec. 6, 2001).
{¶18} After viewing the evidence in a light most favorable to the
prosecution, a rational trier of fact could have found the essential elements of
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robbery proven beyond a reasonable doubt here. Godsey’s first assignment of error
is overruled.
B. Second Assignment of Error
{¶19} In the second assignment of error, Godsey argues that, even if the
evidence against him regarding the robbery charge was legally sufficient, his
conviction was against the manifest weight of the evidence. He bases this argument
on contentions that (1) “the only witness who was there, Wilson, testified credibly
that while Godsey took her phone after he committed assault, he did not assault her
to accomplish the theft,” and (2) “[t]he other evidence, introduced by way of the
detectives, was at most impeachment evidence, which the jury could not use
substantively to convict Godsey.” (Appellant’s Brief at 8-9).
{¶20} The “manifest-weight-of-the-evidence standard of review applies to
the state’s burden of persuasion.” Messenger, 171 Ohio St.3d 227, 2022-Ohio-
4562, at ¶ 26. “To evaluate a claim that a jury verdict is against the manifest weight
of the evidence, we review the entire record, weigh the evidence and all reasonable
inferences, consider the credibility of witnesses, and determine whether in resolving
conflicts in the evidence, the jury clearly lost its way and created such a manifest
miscarriage of justice that we must reverse the conviction and order a new trial.”
State v. Wilks, 154 Ohio St.3d 359, 2018-Ohio-1562, ¶ 168, citing Thompkins, 78
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Ohio St.3d at 387. Yet, “[o]nly in exceptional cases, where the evidence ‘weighs
heavily against the conviction,’ should an appellate court overturn the trial court’s
judgment.” State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9,
quoting State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
2. Analysis
{¶21} For the same reasons we rejected Godsey’s sufficiency-of-the-
evidence argument, we reject Godsey’s manifest-weight-of-the-evidence argument.
See, e.g., Salvatore, 1985 WL 8632, at *4-5 (affirming robbery conviction); Stevens,
2021-Ohio-2643, at ¶ 103-117 (same; aggravated robbery conviction was not
against the manifest weight of the evidence). Having evaluated the claim in
accordance with the standard above, we do not find the jury clearly lost its way and
created such a manifest miscarriage of justice that we must reverse the robbery
conviction and order a new trial.
{¶22} As shown above, the trial testimony of Wilson—the only eyewitness
to the incident—supports convicting Godsey of physical-harm robbery.
Additionally, based on our review of the trial transcript, we do not agree with
Godsey’s assertion that Wilson testified Godsey did not assault her to accomplish
the theft. On the contrary, her testimony clearly established that Godsey inflicted
physical harm by dragging her down the stairs and by hitting her. Her testimony
also supports that, immediately after this assault, Godsey took her phone and left
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the residence. This evidence alone is enough to support Godsey’s conviction
without resorting to the supporting testimony from the responding officer or
detective. Godsey’s second assignment of error is overruled.
C. Third Assignment of Error
{¶23} In the third assignment of error, Godsey argues his trial counsel was
ineffective in a manner that prejudiced him. He submits three instances of alleged
ineffectiveness by his trial counsel: (1) failing to object to inadmissible hearsay
through officers recounting what Wilson told them; (2) failing to object to
inadmissible testimony by the detective who interviewed Wilson about his expertise
with domestic violence victims; and (3) failing to request a theft instruction for
Godsey’s robbery count.
1. Standard of Review and Applicable Law
{¶24} To establish ineffective assistance of counsel, the appellant “must
show (1) deficient performance by counsel, i.e., performance falling below an
objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different.” State v. Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, ¶ 264.
{¶25} Regarding the first requirement, “[i]n order to show counsel’s conduct
was deficient or unreasonable, the defendant must overcome the presumption that
counsel provided competent representation and must show that counsel’s actions
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were not trial strategies prompted by reasonable professional judgment.” State v.
Houston, 3d Dist. Shelby No. 17-10-06, 2010-Ohio-6070, ¶ 35, citing Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Counsel
is entitled to a strong presumption that all decisions fall within the wide range of
reasonable professional assistance.” Id., citing State v. Sallie, 81 Ohio St.3d 673,
675, 693 N.E.2d 267 (1998). “Tactical or strategic trial decisions, even if
unsuccessful, do not generally constitute ineffective assistance.” Id. at ¶ 36, citing
State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). “Rather, the errors
complained of must amount to a substantial violation of counsel’s essential duties
to his client.” Id.
{¶26} Regarding the second requirement, “[p]rejudice results when ‘there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.’” Id., quoting State v. Bradley, 42 Ohio
St.3d 136, 141-42, 538 N.E.2d 373 (1989). “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” Id., quoting
Bradley at 142.
i. Officer and detective testimony regarding what Wilson told them
{¶27} Godsey first argues his “trial counsel was deficient in [his] consistent
failure to object to substantive hearsay” during the testimony at trial from both the
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police officer and detective, “which connected Godsey to the crimes charged, and
[was] highly damaging to Godsey’s defense.” (Appellant’s Brief at 11). For
example, Detective Sean Neidemire (“Detective Neidemire”), who interviewed
Wilson a few days after the January 1, 2021 incident, testified that Wilson was not
completely consistent in what she had told him during the interview and what she
had testified to at trial. Namely, according to Detective Neidemire, Wilson had told
him in the interview that she had been seated on the stairs with her phone beside
her; she reached for her phone; Godsey snatched the phone from her; that is when
he dragged her down the stairs; and then Godsey left Wilson’s residence. (June 6,
2022 Tr. at 228-29).
{¶28} Even assuming (without deciding) trial counsel was deficient in failing
to object to the testimony at issue, Godsey cannot show prejudice resulted. See State
v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, ¶ 253 (rejecting claim of
ineffective assistance of counsel because, “even if we assume that counsel were
deficient, no prejudice resulted”). In other words, Godsey has not shown a
reasonable probability that, but for counsel’s errors, the proceeding’s result would
have been different. As shown above in our analysis overruling the first and second
assignments of error, Wilson’s testimony alone was adequate to convict Godsey of
the Robbery offense. In line with our prior analysis, we find that even had the trial
judge sustained an objection from Godsey’s trial counsel, struck the testimony at
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issue from the record, and instructed the jury to totally disregard it (or had the trial
judge permitted the testimony only as impeachment evidence and gave a limiting
instruction to the jury), the State’s evidence established the elements of robbery.
The confidence in the outcome at trial was not undermined. Therefore, we do not
find the failure to object to the testimony at issue constituted ineffective assistance
of counsel. See State v. Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998)
(even though counsel should have objected to certain testimony, counsel’s failure
to object did not rise to the level of ineffective assistance of counsel because
appellant could not show prejudice given that there was “no reasonable probability
that the outcome would have been different”).
ii. Detective testimony regarding his expertise with domestic violence victims
{¶29} Godsey next argues that his trial counsel was ineffective in failing to
object to alleged expert testimony by someone who did not submit an expert report
(i.e., by someone not disclosed as an expert). Specifically, Godsey points to
Detective Neidemire’s testimony in which he allegedly “opine[s] about the
credibility of [Wilson’s] statements to the jury”—“claiming that it was typical of
victims of domestic violence to be ‘scared’ to testify’” and “‘afraid of the person
that’s assaulted them,” opining that “Wilson was ‘minimizing things,’” and
“vouch[ing] for the credibility of the first statements she made to the police.”
(Appellant’s Brief at 15, quoting June 6, 2022 Tr. at 231-32). According to Godsey,
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all of this testimony was expert testimony and, because Detective Neidemire did not
submit an expert report in accordance with Crim.R. 16, the testimony would have
been precluded at Godsey’s trial if not for his counsel’s ineffectiveness.
{¶30} Even assuming (without deciding) that Detective Neidemire’s
testimony was improper, the failure to object to such testimony did not constitute
ineffective assistance of counsel. Detective Neidemire’s testimony was not
prejudicial for the same reason the officer and detective testimony regarding what
Wilson told them in the police report and police interview was not prejudicial. We
find that, even had the trial judge sustained an objection from Godsey’s trial counsel,
struck the testimony from the record, and instructed the jury to totally disregard it,
it would not have made a difference. The confidence in the outcome at trial was not
undermined. Godsey “cannot show a reasonable probability that the alleged error
resulted in prejudice.” Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, at ¶ 275.
iii. Failure to request instruction on the lesser-included offense of theft
{¶31} Finally, Godsey argues ineffective assistance of counsel because his
trial counsel “did not request a theft instruction, despite it being a lesser included
offense to robbery.” (Appellant’s Brief at 16). This argument fails the first
requirement to establish ineffective assistance of counsel: deficient performance by
counsel. Godsey cannot show that his trial “counsel’s actions were not trial
strategies prompted by reasonable professional judgment.” Houston, 2010-Ohio-
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6070, at ¶ 35. Again, “[c]ounsel is entitled to a strong presumption that all decisions
fall within the wide range of reasonable professional assistance,” and Godsey cannot
overcome that presumption regarding his trial counsel’s decision not to request a
theft instruction. Id.
{¶32} The evidence at trial that Godsey committed theft was strong. The
evidence that he employed physical harm in committing the theft was a central issue
for the jury to decide. The trial transcript demonstrates Godsey’s trial counsel knew
this, focusing his argument to the jury on the timing of the theft and physical harm—
not whether there was a theft. Specifically, defense counsel told the jury: “timing
is pretty much everything in this case, the timing of the theft [of the phone] and the
assault.” (June 7, 2022 Tr. at 321). If the jury had agreed with defense counsel’s
arguments at trial regarding the robbery charge, then not only would Godsey have
been acquitted of robbery, but he would have avoided any potential conviction for
theft. In other words, it is apparent Godsey’s trial counsel pursued a complete
acquittal defense strategy at trial. Therefore, although ultimately unsuccessful, it
was not an unreasonable trial tactic for Godsey’s trial counsel not to request an
instruction on the lesser-included theft offense. See State v. Griffie, 74 Ohio St.3d
332, 333, 658 N.E.2d 764 (1996) (“[f]ailure to request instructions on lesser-
included offenses is a matter of trial strategy and does not establish ineffective
assistance of counsel”), citing State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189
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(1980); see also State v. Blanton, 4th Dist. Adams No. 16CA1035, 2018-Ohio-1278,
¶ 128 (rejecting ineffective assistance of counsel argument; “[o]ften times, with
respect to ‘lesser-included offenses,’ defense counsel will make the strategic
decision not to request a lesser-included offense jury instruction in the hopes that
the jury will outright acquit the defendant on the charged offense, having not been
given the option to find guilt as to the lesser-included offense”).
{¶33} Godsey’s third assignment of error is overruled.
D. Fourth Assignment of Error
{¶34} In the fourth assignment of error, Godsey submits the trial court
committed prejudicial error by not instructing the jury on the lesser-included offense
of theft for the robbery count. He contends the trial court should have instructed the
jury on the lesser-included theft offense because the facts support a reasonable
conclusion that Godsey committed theft but not robbery. The parties do not dispute
theft is a lesser-included offense for physical-harm robbery under R.C.
2911.02(A)(2).
{¶35} As shown in the third assignment of error, Godsey acknowledges his
trial counsel did not request a lesser-included theft instruction to robbery. It follows
that Godsey’s trial counsel also never objected to the court’s alleged failure to
instruct the jury on the lesser-included offense. Given this background, our review
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is limited to plain error. Crim.R. 30(A) (“[o]n appeal, a party may not assign as
error the giving or the failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the matter objected to and
the grounds of the objection”); State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-
6391, ¶ 52 (defendant-appellant’s “failure to object to the instructions waives all but
plain error”); Clayton, 62 Ohio St.2d at 46 (reviewing for plain error whether the
trial court erred in failing to instruct on lesser-included offenses, where defendant’s
trial counsel had not raised an objection).
{¶36} To qualify for plain-error relief, the appellant must establish: (1)
occurrence of an error, i.e., a deviation from a legal rule; (2) the error was plain, i.e.,
it was an obvious defect in the trial proceedings; and (3) the error affected the
appellant’s substantial rights, meaning the error “must have affected the outcome of
the trial.” State v. Morgan, 153 Ohio St.3d 196, 2017-Ohio-7565, ¶ 36. Yet, even
when an appellant establishes those three prongs, “[n]otice of plain error under
CrimR. 52(B) is to be taken with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v. Long,
53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus; see also
Morgan, 2017-Ohio-7565, at ¶ 37; State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, ¶ 23 (“even if an accused shows that the trial court committed plain error
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affecting the outcome of the proceeding, an appellate court is not required to correct
it”).
{¶37} Plain error is not present here. The trial “court’s failure to provide jury
instructions on lesser-included or inferior-degree offenses does not amount to plain
error ‘[w]hen the decision not to request a particular jury instruction may be deemed
to be part of a reasonable trial strategy.’” State v. Lloyd, 8th Dist. Cuyahoga No.
109128, 2021-Ohio-1808, ¶ 41, quoting State v. Mohamed, 151 Ohio St.3d 320,
2017-Ohio-7468, ¶ 27. “‘Put differently, a trial court does not commit plain error
in failing to provide an unrequested jury instruction where the decision to not
request the instruction could be considered trial strategy.’” Id., quoting State v.
Jones, 4th Dist. Ross No. 16CA3574, 2018-Ohio-239, ¶ 27.
{¶38} As shown in our third assignment of error, Godsey’s counsel did not
request a lesser-included theft instruction to robbery and it is apparent Godsey’s trial
counsel pursued a complete acquittal defense strategy at trial regarding the robbery
count. Again, this was a reasonable trial strategy. Therefore, the trial court did not
commit plain error in not providing the jury with the unrequested instruction. Lloyd
at ¶ 42 (“[h]aving determined that counsel’s decision not to request a jury instruction
on the lesser-included or inferior-degree offenses fell within a reasonable trial
strategy, we find the trial court did not commit plain error in failing to provide the
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jury the unrequested instructions”); State v. Burks, 9th Dist. Summit No. 27423,
2015-Ohio-1246, ¶ 7 (“in light of [defendant’s trial] counsel’s decision not to
request lesser-included-offense instructions, the trial court’s failure to give them
does not amount to plain error”); Clayton, 62 Ohio St.2d at 47-48 (the fact that the
jury only received instructions on the charged offense did not amount to plain error).
{¶39} Godsey’s fourth assignment of error is overruled.
IV. CONCLUSION
{¶40} For the foregoing reasons, Godsey’s assignments of error are
overruled. Having found no error prejudicial to the appellant in the particulars
assigned and argued, we affirm the judgment of the Allen County Court of Common
Pleas.
Judgment Affirmed.
ZIMMERMAN, J. and HESS, J., concur.
** Judge Michael D. Hess of the Fourth District Court of Appeals, sitting by Assignment of the Chief Justice of the Supreme Court of Ohio.
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