OPINION {¶ 1} Defendant-appellant, Mark A. Ellis, was indicted on one count of second-degree robbery, in violation of R.C.2911.02(A)(2) and one count of third-degree robbery, in violation of R.C. 2911.02(A)(3). After a jury trial, appellant was found guilty of both counts and sentenced to four years of incarceration on the second-degree felony and two years of incarceration on the third-degree felony, with the sentences to run concurrently. Appellant filed a notice of appeal and raises the following five assignments of error:
I. THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE THAT DEFENDANT-APPELLANT COMMITTED EITHER A SECOND DEGREE ROBBERY IN VIOLATION OF R.C. 2911.02(A)(2), OR A THIRD DEGREE ROBBERY IN VIOLATION OF R.C. 2911.02(A)(3), AND/OR IN THE ALTERNATIVE, DEFENDANT-APPELLANT'S CONVICTIONS FOR THESE OFFENSES ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
II. DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BY HIS COUNSEL'S FAILURE TO REQUEST THE APPROPRIATE JURY INSTRUCTION FOR ROBBERY UNDER R.C. 2911.02(A)(3) AND COUNSEL'S FAILURE TO OBJECT TO THE COURT'S INSTRUCTION WHICH PERMITTED THE JURY TO FIND HIM GUILTY OF ROBBERY UNDER THE "THEFT BY THREAT" STANDARD OF R.C. 2913.02(A)(4), WHICH ALTERNATIVELY CONSTITUTES PLAIN ERROR.
III. R.C. 2911.02(A)(2), SECOND DEGREE ROBBERY, AND R.C.2929.02(A)(3), THIRD DEGREE ROBBERY, PROHIBIT IDENTICAL ACTIVITY, REQUIRE IDENTICAL PROOFS, AND YET R.C. 2911.02(A)(2) SUBJECTS OFFENDERS TO A HIGHER PENALTY THEREBY VIOLATING THE EQUAL PROTECTION CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND SECTION 16, ARTICLE I OF THE OHIO CONSTITUTION.
IV. THE TRIAL COURT ERRED WHEN IT DID NOT GRANT DEFENDANT-APPELLANT A MISTRIAL AFTER A STATE WITNESS IN HER TESTIMONY, REFERRED TO THE FACT MR. ELLIS HAD BEEN INCARCERATED PRIOR TO TRIAL IN VIOLATION OF HIS RIGHT TO DUE PROCESS AS GUARANTEED BY THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2 AND 10, ARTICLE 1 OF THE OHIO CONSTITUTION.
V. MR. ELLIS' CONVICTIONS ON TWO COUNTS OF DIFFERENT FELONY DEGREE ROBBERIES FOR THE SAME CONDUCT VIOLATES THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTIONS AND/OR THE CONVICTIONS REFLECT AN INCONSISTENT VERDICT THAT REQUIRES REVERSAL.
{¶ 2} By the first assignment of error, appellant contends that the state presented insufficient evidence to prove that appellant committed either a second degree robbery in violation of R.C. 2911.02(A)(2), or a third degree robbery in violation of R.C. 2911.02(A)(3), and/or in the alternative, appellant's convictions for these offenses are against the manifest weight of the evidence. The standard of review for sufficiency of the evidence is if, while 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. State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus. "In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict