[Cite as State v. Dover , 2014-Ohio-2303.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO : : Appellate Case No. 2013-CA-58 Plaintiff-Appellee : : Trial Court Ca se No. 12-CR-511B v. : : JEREMY DOVER : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of May, 2014.

. . . . . . . . . . . LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office 50 East Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee BRIAN A. SMITH, Atty. Reg. #0083620, 503 West Park Avenue, Barberton, Ohio 44203 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Jere my Rashaun Dover appeal s from his conviction and 2

 sentence for Aggravated Robbery (Use of Deadly Weapon), in violation of R.C. 2911.01(A)(1), a felony of the first degree, with a firearm specifi cation. 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. {¶ 2} We conclude that the judgment is not against the manifest weight of the evidence, that the trial court did not err by ove rruling 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 tria l court is Affirmed.

I. The Offense {¶ 3} Diana Dixon, the President of the Spri ngfield Liedertafel, a German singing club, withdrew about $1,750 in cash from her checkin g 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. {¶ 4} Dover and two confederates, Richard B ecraft and Laune Dozier, were also in the bank. Becraft was cashing a check. {¶ 5} 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 he r car, she was robbed of her purse, at gunpoint. 3

 Dover was the man who held the gun to her back and demanded that she give the money or he would kill her. Becraft was the man who t ook the purse. Dozier was also present. {¶ 6} 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. {¶ 7} 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 a nd her family lost the van, but after circling around, they found it again, abandoned. The purse and some of its contents we re on the ground near the van. The money and Dixon’s cell phone were never recovered.

II. The Course of Proceedings {¶ 9} Dover was charged by indictment with A ggravated 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 viol ation of R.C. 2923.13(A)(2), a fel ony 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, Dove r was convicted of Aggravated Robbery, with the firearm specification, but he was ac quitted of the two weapons counts. {¶ 10} Dover was sentenced to eleven year s in prison, the maximum sentence for 4

 Aggravated Robbery, with an additional consecu tive sentence of three years for the firearm specification, for a total of fourteen years in prison. From his convic tion and sentence, Dover appeals.

III. A Procedural Note {¶ 11} State’s Exhibit 4-A purports to be a co mpact disc containi ng an audiovisual recording of Dover’s police interrogation. The reco rd reflects that it was played for the jury and admitted in evidence at the trial. {¶ 12} This court was unable to retrieve any a udio 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 offi ce computers. Dover’s a ppellate counsel was kind enough to play this compact disc immediately fo llowing 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 adde d 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 disc marked as State’s Exhibit 4-A remains in our record, as well.

IV. The Jury’s Finding that Dov er Used a Firearm in the Commission of the Offense Is Not Against the Manifest Weight of the Evidence[Cite as State v. Dover , 2014-Ohio-2303.] {¶ 13} Dover’s First Assignment of Error is as follows: APPELLANT’S CONVICTIONS FOR ROBBERY AND HAVING A WEAPON UNDER DISABILITY WERE AGAINST THE 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 i ssue of whether Dover’s Aggravated Robbery conviction is against the manife st 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. {¶ 16} In support of Dover’s assertion that the 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 tes tified 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 thes e witnesses did not see a gun is not inconsistent with Dixon’s testimony. The robbery of Dix on’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 ce ll phone and the money we re not found either. 6

 There would not seem to have been any reason for Dover to have left the gun behind, where it could be found. {¶ 17} 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 reas onably discount the inc onsistency in Dixon’s 911-call reference to the gun being pointed at her h ead as having been a mi sstatement attributable to her agitated emotional state. {¶ 18} Finally, Dover argues that Dixon’s testimony is unworthy of belief, because she testified that she turned to her right and saw th e gun barrel pointed at her back, but Becraft was standing in front of Dover, so Dixon would not ha ve been able to see what she claimed to have seen. The testimony upon which this argu ment 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 he re. 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.[Cite as State v. Dover , 2014-Ohio-2303.] Q. Directly behind you? A. No. He was more to my righ t, 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 wa s 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. {¶ 19} 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 B ecraft was standing to Dixon’s right, which would have put Becraft in front of Dover, fro m Dixon’s point of view, but not necessarily between Dixon and Dover. {¶ 20} To be sure, the discrepancy between Dixon’s 911-call statem ent and her trial testimony; the argument that her testimony s hould be construed to mean that Becraft was standing between Dixon and Dover, preventing Dixon from seeing the object allegedly pushed 8

 into her back; and the fact that no one else sa w a gun, and no gun was rec overed, are matters that Dover could fairly argue to the jury as a basi s for finding reasonable doubt. But none of these points, taken individually or collec tively, 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. {¶ 21} Dover’s First Assignment of Error is overruled.

V. The Trial Court Did Not Err by Imposing a Maximum Prison Sentence {¶ 22} Dover’s Second Assignment of Error is as follows: THE TRIAL COURT ABUSED ITS DI SCRETION 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 standa rd of review set forth in R.C. 2953.08(G)(2). Since then, opinions from this court have expr essed reservations from some judg es 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: All 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 asse ssment. The Court also finds factors 9

 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 b een adjudicated a delinquent child and has a history of cr iminal convictions, a nd the Defendant has not been rehabilitated to a satisfactory de gree after being adj udicated a delinquent and has not responded favorab ly to sanctions previously imposed. Like the Prosecutor, I find no genuine remorse for this offense. The Defendant has served prior pris on 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 ba nk getting a large amount of cash out while the Defendant and his fri ends, the co-Defendants, 1 were in line behind her. The plan appears to have been placed into e ffect 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 had a firearm, which would indicate to the Court that should an opport unity arise, he was ready and willing to participate in the commission of a crime.

1 Dover was tried separately from his co-defendants. It is the finding of the Court that to meet the standards in the sentencing statutes, to protect the community and puni sh the offender, the offender should be 10

 sentenced to a term of imprisonment of 11 years for the aggravated robbery. Further, for the firearm speci fication, the Defendant is se ntenced to three years in prison, which is required under the statute a nd is required to be served consecutive to the 11 years for a total of 14 years. {¶ 25} We find nothing wrong with the trial c ourt’s reasoning. Dover’s prior record indicates a substantial risk of recidivism. His juvenile record includes five offenses and two probation violations; his adult reco rd of prior offenses includes te n 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 c ourt could find, as it evidently did, that Dover represents a serious crime of violence just waiting to be triggered by an 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 {¶ 27} 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 erro r is addressed generally to Theft, in violation of R.C. 2913.02. Petty 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 11

 Dixon’s purse, which included a cash withdrawal of approximately $1,450 in paper currency and another $250 that Dixon already had in her pur se, 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. {¶ 29} 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 st andards, not the heightened standa rd 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 Stat e]: Your Honor, would you only be including lesser included offense of theft? THE COURT: I’ve only been asked fo r 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 evid ence before the jury to consider is, basically, the evidence that was presented by Ms. Dixon was she was threatened at gun point, threatened, and he r purse was stolen by her [sic] by the 12

 participants and that accomplice Becraft th at she described as taking her purse. She identified Mr. Dover as the individua l 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 justif ication 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 wi sh 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 hol ding a gun to her back. MR. GRIFFIN: But if the jury chooses to believe that there 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 a ggravated robbery or nothing. MR. KINSLER: May I? THE COURT: Yes. MR. KINSLER: Even if the jury were to not believe, to not believe that there was a firearm, but believes the Defendant made the threat to Ms. Dixon 13

 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-s ection, as opposed to being a theft. My point being, Your Honor, if the Cour t was going to consider a lesser included, I think it would be the A-2 sub-sec tion, 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 ear lier request, Your Honor. {¶ 32} Since Dover had made no earlier request c oncerning the jury instructions other than his request that the jury be instructed on th e lesser included offense of Theft, we construe the above-quoted reference to relate back to that request. Dover ne ver requested a jury instruction on the lesser-included offense of R obbery, despite the State’s having indicated that he might well be entitled to that instruction. Th is may well have been trial stra tegy, 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. {¶ 33} An instruction on a lesser-included o ffense should only be given where the 14

 evidence warrants it, and where “the evidence does not support a conviction on a lesser included offense, it would be erroneous to instruct the ju ry 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, ba sed 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 c oncluded that no firearm was involved, in which event they might have found Dover not guilty of A ggravated Robbery, but in our view there is no reasonable view of the evidence from which the ju ry could have found Dove r 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 c onviction for Robbery, if the jury concluded that Dover did not use a gun, but told Di xon to give up her purse or he would kill 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 requi red the jury to have found that Dover persuaded Dixon to relinquish her purse, but without having threaten ed 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 resu lt was a statement made during Dover’s interrogation by the detective inves tigating the robbery. That statement was that Dover had a conversation with Dixon while Becraf t snatched Dixon’s purse. For the jury to have concluded that the convers ation Dover had with Dixon cons isted of nothing more than a distraction to enable Becraft to seize the pur se, would have required the jury to speculate concerning the contents of that conversation. D over did not say anything regarding the nature of 15

 that conversation; therefore, th e 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 tr ial court did not abuse its discre tion in declining to give an instruction for Theft. {¶ 35} Dover’s Third Assignment of Error is overruled.

VII. Conclusion {¶ 36} All of Dover’s assignments of error ha ving been overruled, the judgment of the trial court is Affirmed.

. . . . . . . . . . . . .
DONOVAN and HALL, JJ., concur.

Copies mailed to: Lisa M. Fannin Brian A. Smith Hon. Richard J. O’Neill

Case Name: State of Ohio v. Jeremy Dover Case No: Clar k App. No. 2013-CA-58 Panel: Fain, Donovan, Hall Author: Mike Fain Summary: