eceuvl - sconet.state.oh.us rt. 3d ^ ^^ ? 1 2 of the syllabus, ^ollowing jnt°krin v. tn i 1979...

^^ ^^^ SUPREME COURT OP OHIO2014

STATE ^^ OR^^^

^^^^^^^^^

^^^^

^^ÊMY ^^^^^^

^^PELLANTO

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Case No.

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. . .IqOTI` R Ar APPEAL OF APPELLANTI. EMY .DOVER

Je^^^^ ^^^^^ ^ 687^110

Ross Corr. Insta

P®€3,^ ^^^ 7010

Chillicothe, Ohio 45601

Pro-Se

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h Y f} {QJ4. i ^Lf j f

4.r' ^ i r n'.r G,

Q e %,. 2^ r s i a0"%{

JUL 14 2014

CLERK OFÔU.

ECEUVLL ^ ^ ^^^^J IJ

CLERK OF ^^^^^^

-Usa F"Y Yp Fa{e L CE ì.i'!n s #00233C

^^^^^ County ^ro^^^^^^^

50 r^^t Columbia STgi

,^^^^^^^^^^^ Oh ^^^^^

Counsel

NO^^^^ ^^ APPEAL JEREMY nOVER

The ^^^^^^^^^ ^^^^^y ,)over$ hereby gives Notice appeal

to The Supreme Court from the judgment of the Clark ^ûnty Court

of Appeal Second k^^^llat^ ^^^^^^^ ^ entered in Court of Appeals

Case No. 203 3^CA^^^^ May ^^tho 2014.

This case raises a substantial Constitutional qa^^st^^^^

involves a êlo^^^ and is one of ^^^^^^ or Great General Tnteresto

J^^Y '001.aER, 687-110 Pro-:^^P.O. Inox 7010 P.C.T.^hi1licothe, Ohio 45601

CERTiri CA^ ^ OF SERVICE

I hereby certify that a ^^^^ of the foregoing Notice of

A^^^^l was forwarded by U.S. Mail to The Clark County Prosecuting

Attorney at 50 E. ôl^^bia St. 4th Fl^ ^^^^^^field, Ohio 45501,

on this ^ day of 2014,

^^^MY ^VFIR PRO-SE

11

IN THE SUPREME COURT Or OHIO2014

S`I°hTE OF ONIO,

APPELLEEe

vs.

APPELLAk1TTr

m

t:^

^

®^.

A., 1 .^^ tyCourt of AppeaUseamia h. 12a9°e District

CASE ^o, 12®CR-05119

C,A, CASE NO. 13-CA-58

MEWJ RANDI3^ Tlq ST^^^041T OF Jt^^SOTCTION

o:^ APPELLANT ^ V0V .

JereW Dover #60-110Ross .rr®I: sP.O. BOX 7010: hil1i , Ohio 45601

Cbunsel Se

Lisa M. Pannin #002337Clark ootmty ^ tor Att.50 East Col ia St .t.Springfiled, Ohio 45501

TARTÊ Or

^^^LANAT^^^ OF WHY THIS ^^ A ^^SP, OF ^^RLTC OR GRE.A^ ÊNE^^^

INTEREST ANn I. ^ ^^^S A SUBSTANTThL '^^STTTUTTONAL OUESTION ......

STA^^MEa.'^^ Or THS CASE AND rACTS ..®s. m..a

ARGUMENT 117 ;fFR^PolT Ir PROPOS'L^^^^ ^F LAW .. ........

PROPOSTTZON OF LAW gi.....p........

CERTIFICATE OF SERVICE

rNTRY AN?°^ ^^^^^^^,, COURT O^ ^^ÊA^^^F CLARR ^ÛN°^^^

MAY 30THr 2014 ......®®.............w*,,o

° . .,, . ^ ^ÂTTOR OF W4. .. ^ ^^ A CASE OF PfPTiTC CR GNAW .rMM_;kT-.TR ^ RST AND TN^M RS A (T3^MON

The Clark County Court of lc. i-)r^ Pleas ^^^ ^^^rive^ ^^^

Appellant Mr. Jeremy Dover of Due Process of .:^3^^^ ^^ Violation

of his Fif^^^ Sixth, and "^^^^^ên^^ Amendment to The ^^^^. C^^^^titi4ti^^

Article ^ ^ Section 10 and 16 of The Ohio Constitutior^^ As The

Trial Court and Jury lost its way and created a Miscarriage

if Justice. As for the Conviction of the Appellant for ^^^^^^^^^^

Robbery and the sentencing of the appellant to the Maximum sentence

and not instructing the jury of all elements of a lesser included

offensee

sTA ... ^^ ^^ TH^ ^^^^ Aim rA . s

The Appellant was convicted by a Jury of Agg. Robbery Add

was sentenced to

a sentence of ôurteenth Years. The Appellant timely filed an

Appeal seeking to ^^^^ his Conviction and Sentence Reversed.

The Appellant is now filing into this Ohio Supreme Court seeking

to have his Conviction andlo:^ sentence over turnedW

All of the appellants assignments of errors were overruled

and his Judgment of the Trial Court was Affirmed.

Proposition : b. I

'A ^';^^^^^°^ T^ ^Â# A^D !-^ _^ r^ ^ÛS ^ ^° "^^"^"^^'3

71° A FAIR TRTNU AS GLARA 0 , :-Y TIRT tJ.Nr :=s: kAV OlZO

pop) : w : ^111U157 ^pr ^r TF^^^^ PY

supr&7WT EVTD,._ Cw., ANn ARS KU^ST IAPT 47701777 ^:^•.^•^` I^ ...

Sufficiency of evidence is the legal standard that tests whether the evid^^ce

int^^^^ wt trial is ^^^lly szfficiennit to support a Verdict, ^^

1998, 78 Ohio ^^^ 36 380, 386. When reviewing ^^^^^^^ a Verdict

was ^rpoct by a sufficiency of the evidence, an a . ellant court examiz^^^

the evidences in the light . . :.t favorable to the pr. ^îon ^^ ^^^s

ulat;^ any ^^^^ ^ ^ ^^ ^^^p-r of facts could have found essential elements of

the crime ^ron-ven ber .: ^ êas. ^ble Doubt. .,'.^^ ^^ JENKA 1'fi9lf 61 Ohio

Rt. 3d ^ ^^ ? 1 2 of the syllabus, ôllowing JNt°KRIN V. TN I 1979 443^.^.... Û®S^ 307. 99 S«^^. 7711. The Verdict will not be disturbed ^^^^^^ the appellate

C^^^ finds that treasonable minds ^^^^ not reach ^^^ ^^^^si^^ rea^^^^

by the- tries of fac^^^ ^^nk^^ at 273^

?,^^nininq whether a ^^^^^t is against the Manifest Weight of the

: "=: ... -> coric^^rns the. inclination of the qr^nter ^^^^^ ^^ credible evidence

to ^^^^^^^ ^^^ side of the issue r:^^^^^^ then the ot^^^^ ^^cmEkinsffi ^t 3197.

x^^wwi a cc.^^ of ^^âl^ reverses a judc:,T°knt of the trial court ^ the basis

that the 10gmet^t is aqai.` -: the m.^nif,< > w_ _<-;te° of the evi^^nce, the appellate

crart sits as a "thirt^nt'"; juror" anO ;.ise':5rte'3 with the resolution of the

crnflict: r` :5 tew"stimoi3:yc 12a The Court, reviewing the entire record, weighs

the e :' z anl all reasonable i^^^rences® crnsiders the credibility of

the witn ...:^^^ and determines ^^^^êr the trier of facts clearly lost its

way and created such a :.La,-."'îfti3st :iis'idaLL r.4.^^ê of justice that the judg3,EtG:'G3^

mus#R: be reversed ^^^ rEn .;:d to the trial court®, Ti.

i:.;.^...^'.".^sn^s:. was ^`?"ì4.".'^ ,.,1 of 4^n ^^^^°"^ ^'^ )ti^^.'da8^?'< .^.5^;...'^'^':.^:'r .^,g A^::_ .,._ a,.

The State ^^s un.ai^^ to establish actual

.Yossessi^^ of a wea;Î !,a,^ fth^

FortherTcxe, thEe States witness the alle^^ victim Ms. Diana Di^^,

t^^stifieO that (on Tuly ^ 3tho :^^^ ^^ ^ê was ^chte:^ in tho ^^rtis^^ lot of the

F°^^th Third ^^nk.

I

MsXW; ^ ^^stified that the .^^^vi.. .. : ^ was behind me, - . O that she

felt somethin€^ in ^^ ^^^ and she turned avvi sz.^ ^^^ ^^^^^^ ^^ îtne^^

^^^^ Dixon described ^^ other men; The first was ^în a whiWife . . ter

lqrt.; :^^ thte F^^ s "A t_all , ^^ ê vm^°° thr e 1 ^,^,

s^:o .^ . ê with it^ '^, qn7i ir

^^Sp-e T.P. sûly 8the 211^^ at ^ ^^.

The Witness Ms. nixon, also stat^ that a fter one Pf the men. t. .. k.

ber . .. ^ ^ she seen (3) Th. e .. e . . ^$ f2^ ôwa^ ^^ ^^ ^^^^ôns o" tv^^^^^ê 4mtlAlso See AR. July ^^^^ 2013? at ^ ^^.

The trier of facts in this case lost its way .^^ ^^te^l

Miscarriage if Justice in ^victing the N, , K.ll^^^, for several ° ^^^

(1) ^^ ^ Dixon's Testi,. o.^ ^ as ^ ^ the Existence of the ^^ ^^^^ ^^

circumstances ^^^ li^ the bll{: = : " l . . ^^ , is i. ^^^tent.

(2) Ms. nl^^^ ^^^^^^ îvrt e; cinq the 911 ^',al1 ^ she was asked about

a ^^ at one point, she said she didn't : w,gig and at ancther point she ^^scr.^^

the ^^ as ^ ^^ OR OR STAT. AW

See T.R. July 8thm 2013, at 5 92.

^^^ most notable evidence that shows that the Court lost

its t- ; ^ i the In - .sist. ^t Jury ^^^îcts® The Jury Convicted M&. ver of

Agg. an M, ^ ^ ^ of- which is the Possession K Ctntrcl A a ^^DEA^^'^'

NAE_ N? under O.R.C. ^2929^01,,

Rcunwer, The J" - also ^^xpli^^,bly x^ A CC 0 U I T °^ E t) ®^^ ^^ ^^^^

^f Uhme 0harge of TIwv.^^^ A TT,^.a.;. Vnile TtOkw Diâbili^^^ mbich like Aga^. RR , ., ..,rry

rv.. ^^^ the States to Prove that ^^^ Dover had a ^^ ^^^ or ^^^^^^s Ord^^^^^

tutkx his control, O.R.C. E2923.13e the Only ^ther Element of the `^^:°a ^m

ct that could bame : . ,n in dispute was. .... _.^. ,^.

Noa ocm^^^ ^ prior W.^^ ^tnv^^^^^^ to which mrffi Prêr had already ^îpul^teek!''I

O.R.C. j 2923.13m

As a result, Mr, P.;vr r's Conviction was ^^^^^^ the M°°ni^^^ ^^ght

of the Evidence and ^^îs case should be Reversed and l^^lel.

2

Py . otti Of Law 10. 2

RPVE^^^^ OF A CONVTCTTQN 71 Wt^^t"TED W07h^ I n^^VMAAITIs copplvrn or "'aUV VPOOpA`.^r" 00 LAO BRIFV T41 TIÂL Cr

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In' cv.^

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^t ".^ ^^^^`:^; ^"^^ im %^F^^s ro ;'^^3.^'"e"r^^^;F^: •.,ê.",

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st^^^-le 55^ûe^^ ^^^înq -44s.^^h the lost we:^ôn'. ^l;fe'ra' t

f I -.;iI3- '-M':e ^.7oue.. ®r- f f^, of rsa am-'4

' . ^ : ^ I^Z`^^^' I ^.^? Âa:^t

of ^". s "Ir-^^^^cti?:?n.

c,in this :.';;'..''.^sep ^buse Of rli'^".'^',a4^'.... e^.I..{`).^ d:5cm:irs 4^$ers ?=a`rF.^la'2.>ts

;ûnreasonable a^Y c by the 77 3'? ^lenc^? y as s?.m", n .^^_^.9:^î^

.,...^^.°â. %^^3^ . s its â:'s_ '..a..a...3.ca£@ i it ..,''s,, .^. : ...., , ^. _w ',^,

^^t ^?c^ ^"*^Yk^'i+."^3.^ ^^ C^5^' ^^'

'^ :^'^r^ ^^)°^â^"^^ôr ar t3°^#ri.^y #psî^"s^?s tl^^ ?âC"t^3^^ in *^^ .°^. S`'`P'Q.1

supra,g -it- -A^^^ In F^rIAfT g".MAT!, ,^^ r)ist„

^...,^..,,sw .t"i^^ tem. a$almls. .^^ ^f cor^'^;'Sa e ^?"^ ^"'e than ^^ ^?.. C ^"#"''2'"

mi*'.°tg.f is Y€^reônlegof !p)w or Ju?;;nef1t; it i:^^^^^^s that Vie s",

arb^trarw" or ti° icmm^^rcy-Wile.se I!rATp aP. Anv5^ hjo q^

^y:^t^^+^ :^'',^ ,.. P^ ?^,6:r:^^^, .^9 ¢ ^. ^1 ^:^.^^^w .^îâ.'"'c w^ also

note, Vaat the Court nas,

rpfelotiv Sea f71^3"^^

`'burt cufs'^lit'O wi^""`,o

in ir t..^^^

trial murtâ ^ ^YMn......., ..x.^..^..

'`.^^ ^^:^.,..3 €$^ ^ i3st s^ ^ evie^^^ ^3^",r a ^? t^f .... ^ j ?'

T?3 t:''9e ' w"cifru+t^ s-e' Ptr'nce .'r, '%y^ro th' trial cnuri", arl'Atrar`1^

IV 'lac^:^ y`^'?a`^"i5^* ',:;e^`.a^'^ on what '..^"R. F"3^^r^'.t^.'' to ^ the ^?l%^^°i'+Yc•

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.,^'r'^^ .

inch0o- t^^p- l^ctr, c- s^^^^^sness f.^^^ôrs other tl'ia.^ ^hnm- ^•^^ ^^^^^ l ^fl

di,.â^^^w--I, during tho. scm'^^nc:^^^ he'%3.ri^'Ti^=s

R^^êr 29211^121-ni, ?rbe t-^;Î court ôu^^ ^^^ only (^) nrn- af6 ^. ,: ° ?^'^

t^4€^w"e s^''3°'.<o' ?^t"^.^?s^' factors ^t^'3,.^.îel ^..n this cas^g :^`^,'^'sd^,^'l . that ., `.3.` .^"?^'? `^..$.i':`'^^.....

.^

of this offense has suffer€„""^ serious psyc''3ols piw :?El and e°W;•°?? eC:Y'i3i^.° °`°ar^^'s as a

re^îlt of t)-n off. , =;_ %.s^ See& T.P. July 10he 2013^ at 1 11n

T'-' fi "y {;: ae the n'^^te's arg"ment that

thgar.%r)y A"1e' . r;iid of " Rein`^ out in '„„uti.#.ic ';arse.# fgex , :,. the trial

co'^^^'s f;'^nding t} . .., a 4glarge :,^.:^^^^nt of cas'"a' vnq `"..^',+,kF-'.?f"#, t'."êr?' a'Maa ^t

. ._.. .., _ ^ W"Ty;-

testimon:`^" taken %^^. '" ^"ze sen^'e,

^1..^ 4g hea.^^.^`3'-`s'Y such a^^ g.^ ^^4 IMPACT °^"?^.., _ . ^.

to ;xnr1r^^^^^ these ^^^^^ ^r to ârrobsrate t:^ fiivlir€^ cOl

tIA-Rm.ao T.R. Jt:tly 1?thr ?013t a# 7 A aqi 12ma.^.n..û.v

l..P%.ie c2n.F L,ylear.d,'Y see fr!'°m w 'Y.t was s+aa£.=.;.;Q . "3:l.nX>w'--^% 3n stSY.i..eo-ent

that the Trial c'..urt izi'bpo:sit ayn of tt.zH' x?'gvinp:'s^".'° Y°?nt^^^^ iox^n ?sspr. :tAs

>^^ ^tuse cl Di:^^^^^^^^ ^^-^ ^ôul^^ be ^^êr^^ ^nd rema. . ® ffour

C 0 "'i C ì '.;# `•y 'r f"'4 ^^

Tor the reasons set forth hereing the r <.llai{?.t Mr. je3'emy n+.:averp

urges this ^^^ôr^bi^ co^^^^t to crant ^^^^^^fiction in this matter

and i ssue an orêr in th`^.-.^, A°'.:spella?'3t°^ âvorc .*Oa

. ' ^+^^ f^'} t}

4t t ì

^? 3 -6'.e '?' '9P^""r',.,r: `; r v-•Yw'^t^^^% ^ ^ ^''^ E4. ^..:; : . , . ^ ^ ._ . ..

5

11

STATE OF OHIO

Plaintiff-Appellee

V.

JEREMY DOVER

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CLARK COUNTY

Defendant-Appellant

Appellate Case No. 2013-CA-58

Trial Court Case No. 12-CR-511 B

(Criminal Appeal fromCommon Pleas Court)

OPINION

Rendered on the 30th day of May, 2014.

LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor's Office50 East Columbia Street, 4th Floor, Springfield, Ohio 45501

Attorney for Plaintiff-Appellee

BRIAN A. SMITH, Atty. Reg. #0083620, 503 West Park Avenue, Barberton, Ohio 44203Attorney for Defendant-Appellant

FAIN, J.

{¶ 1) Defendant-appellant Jeremy Rashaun Dover appeals from his conviction and

sentence for Aggravated Robbery (Use of Deadly Weapon), in violation of R.C.

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2911.01(A)(1), a felony of the first degree, with a firearm specification. Dover contends that

the jury's finding that a deadly weapon was used in the commission of the offense is

against the manifest weight of the evidence, that the trial court erred in overruling his

request for a jury instruction on the lesser-included offense of Theft, and that the trial court

abused its discretion by imposing the maximum prison term.

(12) We conclude that the judgment is not against the manifest weight of the

evidence, that the trial court did not err by overruling Dover's request for a jury instruction

on Theft, and that the trial court did not err in imposing a maximum prison term.

Accordingly, the judgment of the trial court is Affirmed.

1. The Offense

{¶ 3} Diana Dixon, the President of the Springfield Liedertafel, a German singing

club, withdrew about $1,750 in cash from her checking account at a Fifth Third branch bank

in a Kroger store on Bechtle Avenue, in Springfield. The withdrawal represented the

starting cash for the Liedertafel summerfest. She received about $300 in quarters, the rest

in paper currency. It was about 4:00 in the afternoon on July 13, 2012. She already had

$250 in her purse.

(14) Dover and two confederates, Richard Becraft and Laune Dozier, were also in

the bank. Becraft was cashing a check.

(15) After Dixon got the cash withdrawal, she made some dairy purchases in the

Kroger store. After going through the checkout line, she left the Kroger store, and walked

to her car. When she was ten to twenty feet from her car, she was robbed of her purse,

at gunpoint. Dover was the man who held the gun to her back and demanded that she give


the money or he would kiH her. Becraft was the man who took the purse. Dozier was also

present.

(16) Once the three men had the purse, they ran off. A box containing the $300

in quarters was under Dixon's purse. It was not taken. The rest of Dixon's money, as well

as her cell phone and other items, was in the purse. Dixon used another woman's cell

phone to call 911 and report the robbery.

(17) Cheryl Sample, who was in a car with her granddaughter and husband, saw

three men running away from the Kroger store with a woman's purse. She then saw the

three men get into a van being driven by a woman, and drive off. Sample and her

husband, who was driving, followed the van. Sample called 911.

{¶ 8) At some point, Sample and her family lost the van, but after circling around,

they found it again, abandoned. The purse and some of its contents were on the ground

near the van. The money and Dixon's cell phone were never recovered.

U. The Course of Proceedings

{¶ 9) Dover was charged by indictment with Aggravated Robbery, in violation of R.C.

2911.01(A)(1), a felony of the first degree, with a firearm specification; with Having a

Weapon While Under a Disability, in violation of R.C. 2923.13(A)(2), a felony of the third

degree; and with Having a Weapon While Under a Disability, in violation of R.C.

2923.13(A)(3), a felony of the third degree. Following a jury trial, Dover was convicted of

Aggravated Robbery, with the firearm specification, but he was acquitted of the two

weapons counts.


{¶ 10} Dover was sentenced to eleven years in prison, the maximum sentence for

Aggravated Robbery, with an additional consecutive sentence of three years for the firearm

specification, for a total of fourteen years in prison. From his conviction and sentence,

Dover appeals.

BIIv A Rrocedural Note

{¶ 11} State's Exhibit 4-A purports to be a compact disc containing an audiovisual

recording of Dover's police interrogation. The record reflects that it was played for the jury

and admitted in evidence at the trial.

(112) This court was unable to retrieve any audio or visual signal from State's

Exhibit 4-A. Upon being asked to assist this court, counsel for the State produced a

compact disc on which is written "12-34 324, 7-20-12, 1410 to 1436 HRS, JEREMY

DOVER," and asserted that it contains a copy of the audiovisual recording admitted as

State's Exhibit 4-A. This court has been able to play this compact disc on its office

computers. Dover's appeilate counsel was kind enough to play this compact disc

immediately following the oral argument of this case, and confirms that it does, indeed,

contain an authentic copy of the audiovisual recording of Dover's police interrogation.

Accordingly, we have added this compact disc to our record, and are treating it as an

authentic representation of the recording of Dover's police interrogation that was admitted

in evidence in the trial court as State's Exhibit 4-A. The compact disk marked as State's

Exhibit 4-A remains in our record, as well.


IV. The Jury's Finding that Dover Used a Firearm in the Commission

of the Offense Is Not Against the IVlanifest'itVeight of the Evidence

(113) Dover's First Assignment of Error is as follows:

APPELLANT'S CONVICTIONS FOR ROBBERY AND HAVING A

WEAPON UNDER DISABILITY WERE AGAINSTTHE MANIFEST WEIGHT

OF THE EVIDENCE.

14) Dover was not convicted of Having a Weapon While Under a Disability.

{¶ 15) Dover's argument in support of this assignment of error depends upon his

assertion that the jury lost its way in finding that Dover used a gun in the commission of the

robbery. Although Dover points out the apparent inconsistency in the jury's verdicts, we

conclude that this has no bearing upon the issue of whether Dover's Aggravated Robbery

conviction is against the manifest weight of the evidence. Assuming that the Aggravated

Robbery conviction is inconsistent with the acquittals on the weapons charges, the jury

could just as easily have lost its way in its verdicts of acquittal.

(116) In support of Dover's assertion thatthe jury lost its way in finding that he used

a gun in the commission of the robbery, Dover argues that there is no other evidence in the

record that he used a gun besides Dixon's testimony. No other witnesses saw a gun, and

no gun was found. We find this argument unpersuasive. No other witnesses were present

when the robbery occurred. Two witnesses who testified at the trial went to aid and comfort

Dixon, who was obviously in distress, but shortly after the robbery and after the three

robbers had fled. Cheryl Sample saw the three men fleeing, but after they had left the

Kroger parking lot where the robbery occurred. In our view, the fact that these witnesses

did not see a gun is not inconsistent with Dixon's testimony. The robbery of Dixon's purse


having been completed, it would be natural for Dover to conceal it on his person while

fleeing the scene. And the fact that a gun was not found is also unremarkable. Dixon's cell

phone and the money were not found either. There would not seem to have been any

reason for Dover to have left the gun behind, where it could be found.

(117) Dover also argues that Dixon's trial testimony that a gun was placed at her

back is inconsistent with her statement during the 911 call that a gun was pointed at her

head. We have listened to the recording of the 911 call. As might be expected, Dixon was

sobbing and upset, with the 911 operator repeatedly having had to ask Dixon to take deep

breaths, in order to obtain a coherent account. The jury could reasonably discount the

inconsistency in Dixon's 911-calf reference to the gun being pointed at her head as having

been a misstatement attributable to her agitated emotional state.

(118) Finally, Dover argues that Dixon's testimony is unworthy of belief, because

she testified that she turned to her right and saw the gun barrel pointed at her back, but

Becraft was standing in front of Dover, so Dixon would not have been able to see what she

claimed to have seen. The testimony upon which this argument is based is worth quoting

in full:

Q. And where in your back did he stick it [the gun]?

A. Probably, pretty close to right here. Like, right in the middle of my

back, where my hand is. Where your ribs are. I don't know. Right here.

Q. The middle of your back. So, you turned and saw it, correct?

A. Yes, sir.

Q. And where was the man in the white t-shirt [Becraft], at that time?

A. The man in the white t-shirt would have been to my right.


Q. And the man with the gun, where was he?

A. He was in back of me.

11 Q. Directly behind you?

A. No. He was more to my right, behind the gentleman, I would say,

that took my purse. But he was behind me, right here. He was to my right.

If I looked to my right, he was right here.

Q. So, the man you've identified as Jeremy [Dover], was to your

right?

A. He was in back. I - I don't know. Who - is Jeremy the one in the

white shirt? Is that what you're asking?

Q. The teal shirt.

A. The teal colored shirt would have been behind me.

Q. The man behind you, directly behind you?

A. I don't know if he was directly behind me, but he was behind me,

yes.

Q. And the man that took your purse [Becraft] was in front of him?

A. Yes.

Q. To your right?

A. Yes.

(119) In our view, the jury could reasonably have taken the above-quoted testimony

to mean that Dover was behind Dixon, somewhat to the right of the line extending directly

backward from the center of Dixon's back, and Becraft was standing to Dixon's right, which


would have put Becraft in front of Dover, from Dixon's point of view, but not necessarily

between Dixon and Dover.

(¶ 20) To be sure, the discrepancy between Dixon's 91 1-call statement and hertrial

testimony; the argument that her testimony should be construed to mean that Becraft was

standing between Dixon and Dover, preventing Dixon from seeing the object allegedly

pushed into her back; and the fact that no one else saw a gun, and no gun was recovered,

are matters that Dover could fairly argue to the jury as a basis for finding reasonable doubt.

But none of these points, taken individually or collectively, persuade us that the jury lost its

way in choosing to credit Dixon's testimony that Dover pointed a gun at her back and

demanded that she give them her purse, or he would kill her.

(121) Dover's First Assignment of Error is overruled.

V. The Trial Court Did Not Err by Imposing a Maximum Prison Sentence

(122) Dover's Second Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED THE

MAXIMUM SENTENCE ON APPELLANT.

{¶ 23} In State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, ¶ 29 (2d Dist.), we held

that we would no longer use an abuse-of-discretion standard in reviewing a sentence in a

criminal case, but would apply the standard of review set forth in R.C. 2953.08(G)(2).

Since then, opinions from this court have expressed reservations from some judges of this

court whether that decision in Rodeffer is correct. See, e,g., State v. Garcia, 2d Dist.

Greene No. 2013-CA-51, 2014-Ohio-1538, ¶ 9, fn.1. In the case before us, we find no

error in the sentence imposed under either standard of review.


{¶ 24.} In imposing sentence, the trial court set forth the following analysis:

THE COURT: AII right. I have reviewed the pre-sentence report. The

first thing I note is the Ohio Risk Assessment Survey was completed, and the

Defendant scored high on the risk assessment. The Court also finds factors

regarding more or less serious nature of the offense, the victim of this

offense has suffered serious psychological and economic harm as a result

of the offense. I don't find any factors making it less serious.

This offense occurred on July 13, 2012. At that time, the Defendant

was out on bond for a Municipal Court case. The Defendant has been

adjudicated a delinquent child and has a history of criminal convictions, and

the Defendant has not been rehabilitated to a satisfactory degree after being

adjudicated a delinquent and has not responded favorably to sanctions

previously imposed. Like the Prosecutor, ! find no genuine remorse for this

offense.

The Defendant has served prior prison terms, both, for robbery in

2002, for drug abuse in 2006, for weapons under disability in 2008.

This particular crime seems to be one of convenience and opportunity

in that the victim happened to be at the bank getting a large amount of cash

out while the Defendant and his friends, the co-Defendants,' were in line

behind her. The plan appears to have been placed into effect quite rapidly.

The Defendant had a firearm on or about his person, which I don't believe

was brought to the bank for the purpose of robbing this victim, but he simply

' Dover was tried separately from his co-defendants.

THE COURT' OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

had a firearm, which would indicate to the Court that should an opportunity

arise, he was ready and willing to participate in the commission of a crime.

It is the finding of the Court that to meet the standards in the

sentencing statutes, to protect the community and punish the offender, the

offender should be sentenced to a term of imprisonment of 11 years for the

aggravated robbery. Further, for the firearm specification, the Defendant is

sentenced to three years in prison, which is required under the statute and

is required to be served consecutive to the 11 years for a total of 14 years.

(125) We find nothing wrong with the trial court's reasoning. Dover's prior record

indicates a substantial risk of recidivism. His juvenile record includes five offenses and two

probation violations; his adult record of prior offenses includes ten offenses and two, three-

year prison terms, for Robbery and for Having a Weapon While Under a Disability. And

the circumstances of the offense in the case before us indicate that he has problems with

impulse control. In short, the trial court could find, as it evidently did, that Dover represents

a serious crime of violence just waiting to be triggered by ari opportunity.

{¶ 26) Dover's Second Assignment of Error is overruled.

VI. The Trial Court Did Not Err by Overruling

Dover's Request for a Jury Instruction on Theft

(127) Dover's Third Assignment of Error is as follows:

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE

ELEMENTS OF THE LESSER INCLUDED OFFENSE OF PETTY THEFT

CONSTITUTED PLAIN ERROR.


{¶ 28} Dover's argument in support of this assignment of error is addressed

generally to Theft, in violation of R.C. 2913.02. PetEy Theft is defined as the theft of

property or services of a value of less than $1,000, and there is nothing in the record to

suggest that the contents of 'Dixon's purse, which included a cash withdrawal of

approximately $1,450 in paper currency and another $250 that Dixon already had in her

purse, was less than $1,000. We will, therefore, analyze this assignment of error as

relating to the trial court's failure to have instructed the jury on Theft, in violation of R.C.

2913.02(A), (B)(2), a felony of the fifth degree.

(129) Curiously, Dover presents this assignment in terms of plain error, indicating

that because he did not object to the jury instructions, he has forfeited all but plain error.

But the record reflects that he requested an instruction on Theft, and renewed that request

immediately after the trial court had instructed the jury. Therefore, we will analyze this

assignment of error under conventional error standards, not the heightened standard

required to find plain error.

{¶ 30} Dover's initial request for an instruction on Theft resulted in the following

colloquy:

THE COURT: * * * . I received a request this morning from the

Defense for an instruction on a lesser include [sic] offense of theft. Does the

State wish to be heard on that issue?

MR. KINSLER [representing the State]: Your Honor, would you only

be including lesser included offense of theft?

THE COURT: I've only been asked for the lesser included offense.

I'm trying to determine whether or not that's been asked on any other


instruction, other than that.

MR. KINSLER: Your Honor, the only evidence before the jury to

consider is, basically, the evidence that was presented by Ms. Dixon was she

was threatened at gun point, threatened, and her purse was stolen by her

[sic] by the participants and that accomplice Becraft that she described as

taking her purse. She identified Mr. Dover as the individual who pointed the

gun at her, made a threat against her life, simultaneously, with the purse

being snatched. At best, my point being, I don't understand what justification

there would be a lesser include [sic] of theft in that the Defendant

participated in the way that Ms. Dixon described or he did not. I don't know

if there is any evidence before the jury that it wasn't.

THE COURT: Mr. Griffin, do you wish to put anything on record

regarding cause?

MR. GRIFFIN [representing Dover]: The threat or intimidation would

have been, Ms. Dixon's statement that the person said to her, give me the

money, bitch, or I'll kill you. I feel that would qualify as both a threat and an

intimidation.

THE COURT: That is correct. In conjunction with the fact that she

testified that he was holding a gun to her back.

MR. GRIFFIN: But if the jury chooses to believe thatthere was no gun,

because none was ever found or anything like that, then I don't think it it [sic]

should be left with either aggravated robbery or nothing.

MR. KINSLER: May I?

THE COURT OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

THE COURT: Yes.

MR. KINSLER: Even if the jurywere to not believe, to not believe that

there was a firearm, but believes the Defendant made the threat to Ms. Dixon

described, that will would [sic] not be a theft. That would be be [sic] a threat

and a robbery, under the [R.C. 2911.02] A-2 sub-section, as opposed to

being a theft. My point being, Your Honor, if the Court was going to consider

a lesser included, I think it would be the A-2 sub-section, robbery, rather than

theft.

THE COURT: The Court, agreeing with the State's argument, there

has been no other lesser instruction [sic] so the matter will go to the jury on

the instruction as indicted [sic].

MR. GRIFFIN: Thank you, Your Honor.

{¶ 31} After the jury was instructed, but before it retired to deliberate, the trial court

gave both counsel an opportunity to make a record on the subject of the jury instructions,

and Dover responded:

THE COURT: Counsel for the Defense wish to put anything on record

regarding the jury charge?

MR. GRIFFIN: Just our earlier request, Your Honor.

{¶ 32} Since Dover had made no earlier request concerning the jury instructions

other than his request that the jury be instructed on the lesser included offense of Theft,

we construe the above-quoted reference to relate back to that request. Dover never

requested a jury instruction on the lesser-included offense of Robbery, despite the State's

having indicated that he might well be entitled to that instruction. This may well have been


trial strategy, Dover having decided that he did not want to take a chance that the jury

would find him guilty of Robbery if it did not find the State to have proven all of the

elements of Aggravated Robbery beyond reasonable doubt.

(133) An instruction on a lesser-included offense should only be given where the

evidence warrants it, and where "the evidence does not support a conviction on a lesser

included offense, it would be erroneous to instruct the jury thereon, as to do so would

confront the jury with the choice of reaching an unreasonable conclusion." State v.

Johnson, 36 Ohio St.3d 224, 228, 522 N.E.2d 1082 (1988). In the case before us, based

on the evidence in the record, to have instructed the jury on Theft would have given them

the choice of reaching an unreasonable conclusion. The jury might reasonably have

concluded that no firearm was involved, in which event they might have found Dover not

guilty of Aggravated Robbery, but in our view there is no reasonable view of the evidence

from which the jury could have found Dover guilty of Theft, but not guilty of Robbery. The

only three outcomes reasonably supported by the evidence were: (1) a conviction for

Aggravated Robbery, if the jury concluded that Dover put a gun to Dixon's back and told

her to give up her purse or he would kill her; (2) a conviction for Robbery, if the jury

concluded that Dover did not use a gun, but told Dixon to give up her purse or he would ki6l

her; or (3) an acquittal of either charge, if the jury decided not to credit the State's

evidence.

{¶ 34) A conviction for Theft would have required the jury to have found that Dover

persuaded Dixon to relinquish her purse, but without having threatened her with the

infliction of physical harm, which would have made the offense Robbery under R.C.

2911.02(A)(2). The only evidence in the record that arguably could have supported this


result was a statement made during Dover's interrogation by the detective investigating the

robbery. That statement was that Dover had a conversation with Dixon while Becraft

snatched Dixon's purse. For the jury to have concluded that the conversation Dover had

with Dixon consisted of nothing more than a distraction to enable Becraft to seize the

purse, would have required the jury to speculate concerning the contents of that

conversation. Dover did not say anything regarding the nature of that conversation;

therefore, the only characterization of that conversation in the record is Dixon's testimony

that Dover told her he would kill her if she did not give up her purse. We conclude,

therefore, that the trial court did not abuse its discretion in declining to give an instruction

for Theft.

(135) Dover's Third Assignment of Error is overruled.

V{1. Conclusion

(136) All of Dover's assignments of error having been overruled, the judgment of

the trial court is Affirmed.

DONOVAN and HALL, JJ., concur.

Copies mailed to:

Lisa M. FanninBrian A. SmithHon. Richard J. O'Neill

T'HE COUR'T OF APPEALS OF OHIO

SECOND APPELLATE DISTRICT

IN THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

CLARK COUNTY

STATE OF OHIO

Plaintiff-Appellee

V.

JEREMY DOVER

Defend a nt-Appel la nt

Appellate Case No. 2013-CA-58

Trial Court Case No. i 2-CR-51 1 E

(Criminal Appeal fromCommon Pleas Court)

FINAL ENTRY

Pursuant to the opinion of this court rendered on the _30-th day

of Nlay , 2014, the judgment of the trial court is Affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), it is hereby ordered that the clerk of the Clark County

Court of Appeals shall immediately serve notice of this judgment upon all parties and make

a note in the docket of the mailing.

P I

MIKE FAIN, Judge


%,

MARY ^. DONQVAN, Judge

MICHAEL T. HALL, Judge

Copies mailed to:

Lisa M. FanninClark County Prosecutor's Office50 E. Columbia StreetP.O. Box 1608Springfield, OH 45501

Brian A. Smith503 W. Park AvenueBarberton, OH 44203

Hon. Richard J. O'NeillClark County Common Pleas CourtCourthouse, 101 N. LimestoneSpringfield, OH 45502-1120


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