[Cite as State v. Osborne , 2020-Ohio-5563.] IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

BUTLER COUNTY

STATE OF OHIO, Appellee,

- vs -

SHAWN D. OSBORNE, Appellant. :

:

:

:

:

: CASE NO. CA2019-07-107

O P I N I O N

12/7/2020

CRIMINAL APPEAL FROM BUTLER C OUNTY COURT OF COMMON PLEAS Case No. CR2018-08-1517

Michael T. Gmoser, Butler County Prosecuting Attorney, Michael Greer, Government Services Center, 315 High Street, 11th Floor, Hamilton, Ohio 45 011, for appellee Engel & Martin, LLC, Mary K. Mart in, 4660 Duke Drive, Suite 101 , Mason, Ohio 45040, for appellant

RINGLAND, J. {¶1} Appellant, Shawn Osborne, appeals his conviction in the Butler County Court of Common Pleas for aggravated robbery. For the reasons discus sed below, we affirm

Osborne's conviction. {¶2} Amanda Ruby, a manager at the Captain D's restaurant in Fairfie ld, testified at trial that she entered the restaurant at around 11:30 on Aug ust 15, 2018. She spent about a half-hour in the restaurant, stocking and preparing the restaurant for opening the next day. When she arrived, the restaurant was closed and ther e were no other cars in theButler CA2019-07-107

- 2 - parking lot. As she locked up and began to leave, she noticed Osborne, who she did not know, sitting in the driver's seat of her truck in the parking lot. Angry and upset, Ruby approached the vehicle and told Osborne to get out. She asked him why he was there and told him she was calling the police. {¶3} Osborne told Ruby his name was Jamie Kerns and that his friend had broken

into the vehicle and was down the street at McDonalds. When Os borne got out of the vehicle, Ruby noticed the window had been broken. Her wallet a nd around $20 to $30 in cash from the console were missing. In addition, the interior dome light was ripped out. Osborne told Ruby to follow him to McDonald's and he would "get her stuff back." {¶4} During this time, Ruby had been attempting to call the police, but was unable to get the home screen on her phone to appear. Osborne began w alking toward McDonald's, so she followed him in her truck in an effort to ke ep an eye on him while continuing to try to get her phone working and call the police. On entering McDonald's, no workers were at the counter and none appeared when Ruby called for help, so she stepped behind the counter. As she stepped behind the counter, Osborne left the restaurant. {¶5} When the McD onald's worker failed to help, Ruby walked back out side. She began asking Osborne why he "would do such a thing" and telling him that she wanted her stuff back. Osborne gave Ruby her wallet back and she began to walk back to her truck, still attempting to call police. She was finally able to conne ct to 9-1-1, but as she got into her truck, Osborne prevented her from shutting the door, pulled out a knife and said "look what I have here." Ruby leaned back to avoid the knife. She w as still on the phone with a dispatcher and told the dispatcher that Osborne had a knife. O sborne began telling Ruby to give him the phone. Osborne grabbed Ruby's arm and took the phone and threw it across the parking lot. When Ruby went after the phone, Osborne got i nto the truck and began to drive off. Ruby jumped in the truck bed.Butler CA2019-07-107

- 3 - {¶6} When Osborne realized Ruby was in the back of the truck, he beg an jerking the wheel back and forth and kept reaching around, trying to st ab Ruby with the knife. Eventually, police began following the vehicle and Osborne got out of the truck and ran into the dark toward an apartment building. Ruby remained on the ph one with 9-1-1 the entire time of the incident. Osborne was arrested the following day i n a truck stolen from a construction company. A knife w as found in the cup holder of t he vehicle. {¶7} Osborne was charged with aggravated robbery and grand theft for the incident. At trial, Ruby and several police officers testified . Camera footage from Captain D's, McDonald's and a nearby business were admitted, in additio n to a recording of the 9- 1-1 call and body camera footage of the police officer on the s cene the night of the incident. A jury found Osborne guilty of both charges. At sentencing, th e grand theft charge was merged into the aggravated robbery charge and Osborne was sente nced accordingly. {¶8} On appeal, Osborne raises three assignments of error for our re view. {¶9} FIRST ASSIGNMENT OF ERROR: {¶10} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING TO GIVE A

LESSER INCLUDED OFFENSE JURY INSTRUCTION {¶11} In his first assignment of error, Osborne challenges the trial court's decision to deny his request for a jury instruction on a lesser-included offense. At trial, Osborne requested an instruction on the lesser-included offense of robb ery. {¶12} A jury instruction on a lesser included offense is required onl y where the evidence presented at trial would reasonably support both an ac quittal on the crime charged

and a conviction on the lesser included offense. State v. Carroll , 12th Dist. Clermont Nos. CA2007-02-030 and CA2007-03-041, 2007-Ohio-7075, ¶ 136, citing State v. Carter , 89 Ohio St.3d 593, 600, 2000-Ohio-172, (2000). An instruction is not warranted, however, simply because the defendant offers some evidence to establish the lesser includedButler CA2019-07-107

- 4 - offense. State v. Gray , 12th Butler No. CA2010-03-064, 2011-Ohio-666, ¶ 23, citing State

v. Shane , 63 Ohio St.3d 630, 632-633, (1992). There must instead be su fficient evidence to allow the jury to reasonably reject the greater offense and find the defendant guilty on

a lesser included offense. State v. Anderson , 12th Dist. Butler No. CA2005-06-156, 2006- Ohio-2714, ¶ 11. When making this determination, the trial cou rt must view the evidence in a light most favorable to the defendant. State v. Tolle , 12th Dist. Clermont No. CA2014- 06-042, 2015-Ohio-1414, ¶ 11

. {¶13} We review a trial court's decision to not instruct the jury on a lesser included

offense for an abuse of discretion. State v. Grimm , 12th Dist. Clermont No. CA2018-10- 071, 2019-Ohio-2961, ¶ 27. An abuse of discretion connotes mor e than an error of law or judgment; it implies that the trial court's decision was unreas onable, arbitrary, or

unconscionable. State v. Boles , 12th Dist. Brown No. CA2012-06-012, 2013-Ohio-5202, ¶

14. {¶14} An offense qualifies as a lesser included offense when "the gre ater offense as statutorily defined cannot be committed without the lesser o ffense as statutorily defined also being committed." State v. Owens , Slip Opinion No. 2020-Ohio-4616, ¶ 8 , quoting

State v. Evans , 122 Ohio St.3d 381, 2009-Ohio-2974, ¶ 26. In making this ass essment, a court compares the elements of each crime. Evan at ¶ 14. {¶15} The parties do not dispute the fact that robbery is a lesser in cluded offense of aggravated robbery. R.C. 2911.01(A)(1) defines aggravated rob bery and provides that no person, in attempting or committing a theft offense, shall "hav e a deadly weapon on or about the offender's person or under the offender's control and eithe r display the weapon, brandish it, indicate that the offender possesses it, or use it ." Robbery is defined by R.C. 2911.02(A)(2), which provides that no person shall inflict, att empt to inflict, or threaten to inflict physical harm on another, while committing, attempting to commit, or fleeing a theftButler CA2019-07-107

- 5 - offense. State v. Keller , 12th Dist. Butler No. CA2018-07-137, 2019-Ohio-1397, ¶ 9. Th us, in this case, the failure to instruct on the offense of robbery constitutes error only if the jury could reasonably have found that Osborne committed the robbery without the use of a deadly weapon. {¶16} The court determined that a reasonable juror could find that Ru by was mistaken about Osborne having a knife, but that a reasonable ju ry could not find force or threat of force without the use of the knife. The only evidenc e that the court considered as force was Osborne's actions in grabbing Ruby's arm and throwing her cell phone. The court determined that it was more likely that Osborne committed this act to avoid the 9-1-1 call,

and not as an action in furtherance of the theft itself. Osbor ne argues that the trial court substituted what it thought of the evidence instead of reviewin g the evidence in a light most

favorable to him. {¶17} However, given the uncontroverted evidence, we find that a jury could not reasonably find Ruby's testimony regarding the robbery believab le, yet find that Osborne did not have a deadly weapon. "'The mere fact that an offense can be a lesser included

offense of another offense does not mean that a court must inst ruct on both offenses where the greater offense is charged.'" State v. Wine , 140 Ohio St.3d 409, 2014-Ohio-3948, ¶ 22 , quoting State v. Wilkins , 64 Ohio St. 2d 382, 387 (1980)

. Instead, "the quality of the

evidence offered * * * determines whether a lesser-included-off ense charge should be given to a jury." State v. Wine at ¶ 26. When a court reviews the quality of the evidence off ered, the court must consider "[t]he whole of the state's case." State v. Bethel , 110 Ohio St. 3d 416, 2006-Ohio-4853, ¶ 141 (2006), citing State v. Goodwin , 84 Ohio St.3d 331, 345, 1999 Ohio 356, (1999). {¶18} The evidence regarding the use of the knife in this case is unc ontroverted and consistent. Ruby testified repeatedly that Osborne had a knife , threatened her with it, andButler CA2019-07-107

- 6 - stabbed at her as he was driving the truck. During the 9-1-1 c all, which was played for the jury, as the events were occurring Ruby repeatedly told the dis patcher that appellant had a knife and was trying to kill her. The body camera video of the officer who arrived at the scene during the incident documents Ruby telling the officer th at Osborne had a knife and

threatened her with it and tried to stab her as she was in the bed of the truck. When Osborne was arrested, a knife was found in the cupholder of the vehicle he was driving. Although Osborne argues the knife is not visible on surveillance video o f the incident and the knife was not tested for DNA, these facts are not inconsistent with t he testimony that Osborne used a knife during the offense. Osborne did not present any t estimony or evidence to indicate the knife was not used during the offense. {¶19} In similar circumstances, this court and other courts have dete rmined that no error occurs when a trial court denies a request for a lesser-i ncluded instruction when there is uncontroverted evidence of an element of the crime, as there is no reasonable basis, other than speculation, for the jury to find the defendant not guilty of the greater offense and guilty of the lesser-included offense. See State v. Hines , 12th Dist. Clermont No. 2017-06- 025, 2018-Ohio-1780 (although defendant argued no physical evid ence of penetration, in light of uncontroverted statements by the victim that defendant digitally penetrated her, no reasonable basis to find sexual contact, but not sexual conduct ); State v. Smith , 1st Dist. Hamilton No. C-76135, 1977 Ohio App. Lexis 8535 (June 22, 1977) (testimony of both victims uncontroverted that defendant used a knife); State v. Fouts , 4th Dist. Washington No. 15CA25, 2016-Ohio-1104 (victim's testimony regarding use of force uncontroverted);

State v. Jackson , 4th Dist. Highland Co. No. 18CA7, 2018-Ohio-4289 (uncontrover ted evidence of force used to enter residence). {¶20} Accordingly, although based on different reasoning, we find the trial court did not abuse its discretion in denying the request for a lesser-in cluded jury instruction. SeeButler CA2019-07-107

- 7 - State v. Adams , 12th Dist. Butler No. CA2010-12-321, 2011-Ohio-1721, ¶ 22; State v.

Baker , 12th Dist. Clermont No. CA2018-06-042, 2019-Ohio-2280, ¶ 26 ( an appellate court will not reverse a judgment that is based on erroneous reasonin g if that judgment is otherwise correct, that is, it achieves the right result for th e wrong reason). Therefore, Osborne's first assignment of error is overruled. {¶21} SECOND ASSIGNMENT OF ERROR: {¶22} THE CONVICTIONS IN THIS MATTER WERE NOT SUPPORTED BY

SUFFICIENT EVIDENCE. {¶23} THIRD ASSIGNMENT OF ERROR: {¶24} THE CONVICTIONS IN THIS MATTER WERE AGAINST THE MANIFEST

WEIGHT OF THE EVIDENCE. {¶25} In his second and third assignments of error, Osborne challenge s the sufficiency and manifest weight of the evidence. Specifically, he challenges the determination that he used a deadly weapon to commit the offens e. {¶26} When reviewing t he sufficiency of the e vidence underlying a cri minal conviction, an appellate court examines the evidence in order t o determine whether such evidence, if believed, would convince the average mind of the d efendant's guilt beyond a

reasonable doubt. State v. Paul , 12th Dist. Fayette No. CA2011-10-026, 2012-Ohio-3205, ¶ 9. Therefore, "[t]he relevant inquiry is whether, after view ing 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." State v. Jenks , 61 Ohio St.3d 259 (1991), paragraph two of the syllabus. {¶27} On the other hand, a manifest weight of the evidence challenge examines the "inclination of the greater amount of credible evidence, offere d at a trial, to support one side

of the issue rather than the other." State v. Barnett , 12th Dist. Butler No. CA2011-09-177,Butler CA2019-07-107

- 8 - 2012-Ohio-2372, ¶ 14. To determine whether a conviction is aga inst the manifest weight of the evidence, the reviewing court must look at the entire re cord, weigh the evidence and all reasonable inferences, consider the credibility of the witn esses, and determine whether in resolving the conflicts in the evidence, the trier of fact c learly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial

ordered. State v. Graham , 12th Dist. Warren No. CA2008-07-095, 2009-Ohio-2814, ¶ 66. In reviewing the evidence, an appellate court must be mindful t hat the jury, as the original trier of fact, was in the best position to judge the credibilit y of witnesses and determine the weight to be given to the evidence. State v. Blankenburg , 197 Ohio App.3d 201, 2012- Ohio-1289, ¶ 114 (12th Dist.) {¶28} An appellate court will overturn a conviction due to the manife st weight of the evidence "only in the exceptional case in which the evidence we ighs heavily against the

conviction." Id. , citing State v. Thompkins , 78 Ohio St.3d 380, 387, 1997-Ohio-52 (1997). Moreover, although the legal concepts of sufficiency of the evi dence and weight of the evidence are quantitatively and qualitatively different, "[a] d etermination that a conviction is supported by the manifest weigh t of the evidence will also be d ispositive of the issue of sufficiency." State v. Jones , 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-150, ¶ 19. {¶29} As mentioned above, Osborne was convicted of aggravated robbery , which states no person, in attempting or committing a theft offense, shall "have a deadly weapon on or about the offender's person or under the offender's contr ol and either display the weapon, brandish it, indicate that the offender possesses it, o r use it." R.C. 2911.01(A)(1). As defined by R.C. 2913.01(K)(4), the term "theft offense" incl udes a "conspiracy or attempt to commit, or complicity in committing" a theft in violation of R.C. 2913.02(A)(1), which "prohibits the purposeful deprivation of property from another by knowingly exerting or obtaining control over that property without consent of the own er." State v. Tenbrook , 12thButler CA2019-07-107

- 9 - Dist. Butler No. CA2020-01-005, 2020-Ohio-5227, ¶ 11. {¶30} On appeal, Osborne does not dispute the determination that he c ommitted a theft offense when he took Ruby's truck. Instead, he argues th e evidence does not support a finding that he had a deadly weapon on or about his person or control, or that he displayed, brandished or indicated that he possessed the weapon, or used i t. He contends that although Ruby testified regarding the knife, there was no evide nce a knife was present during the incident as Ruby was unable to identify the knife, n one of the surveillance videos show a knife, and nothing links him to the knife found the foll owing day when he was apprehended. {¶31} However, contrary to Osborne's arguments, the jury's determinat ion that a knife existed and that Osborne used it as a weapon during the o ffense was not against the manifest weight of the evidence. As mentioned in the first ass ignment of error, Ruby testified that Osborne had a weapon, pulled it out during the o ffense, and stabbed at her while she was in the back of the pickup truck. Her testimony i s uncontroverted and is supported by the 9-1-1 call, as Ruby repeatedly told the dispat cher Osborne had a knife and was going to kill her. In body camera footage, Ruby told t he officer at the scene that Osborne pulled a knife out and threatened her, tried to stab he r in the bed of the truck and that she thought Osborne was going to kill her because he kept reaching around and trying to stab her with the knife. In addition, when Osborne was appr ehended, a knife was found in the cupholder of the vehicle he was driving. {¶32} Accordingly, we find that Osborne's conviction for aggravated r obbery is not against the manifest weight of the evidence, and is therefore s upported by sufficient evidence. Osborne's second and third assignments of error are therefore overruled. {¶33} Judgment affirmed.Butler CA2019-07-107

- 10 - M. POWELL, P.J., and PIPER, J., concur.