author: CYNTHIA WESTCOTT RICE, J. TIMOTHY P. CANNON, J., concurring in part and dissenting in part.

text:
    STATE of Ohio, Plaintiff-Appellee, v. Dawud WILSON, Defendant-Appellant.
    NO. 2016-L-039
    Court of Appeals of Ohio, Eleventh District, Lake County.
    March 12, 2018
    Charles E. Coulson, Lake County Prosecutor, and Anna C. Kelley, Assistant Prosecutor, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH 44077 (For Plaintiff-Appellee).
    Charles R. Grieshammer, Lake County Public Defender, and Vanessa R. Clapp, Assistant Public Defender, 125 East Erie Street, Painesville, OH 44077 (For Defendant-Appellant).
   CYNTHIA WESTCOTT RICE, J.

{¶ 1} Appellant, Dawud Wilson, appeals his conviction and sentence, following his no contest plea to robbery and a repeat violent offender specification, in the Lake County Court of Common Pleas. The principal issue is whether the trial court erred in denying appellant's motion to suppress. For the reasons that follow, we affirm.

{¶ 2} On June 1, 2015, appellant was indicted for aggravated robbery, a felony-one, with a repeat violent offender ("RVO") specification (Count 1); robbery, a felony-two, with an RVO specification (Count 2); and receiving stolen property, a felony-five (Count 3). Appellant pled not guilty.

{¶ 3} On July 16, 2015, appellant filed a motion to suppress, arguing the sheriff's deputy lacked reasonable suspicion to stop him. Evidence at the suppression hearing revealed that on April 17, 2015, at about 1:00 p.m., appellant walked into the Buckeye Credit Union in Painesville Township and handed the teller a note, saying he had a loaded gun on him and to place all the bills from her drawer on the counter. Appellant's note indicated that if she did not follow the instructions in the note, he would use the gun to hurt her. The teller produced $1,972. Appellant took the money and left.

{¶ 4} Lake County Sheriff's deputies immediately responded. Based on information provided by deputies, dispatch issued a "Be On The Lookout" broadcast to area law enforcement agencies with a description of the suspect and his vehicle.

{¶ 5} Deputy William Leonello, a 34-year veteran police officer, said he was on duty at the intersection of Route 84 and Route 91, when he heard a broadcast from dispatch that a robbery had just occurred at the Buckeye Credit Union at the intersection of Fairgrounds Road and Route 20. Dispatch described the suspect as a black male dressed in black clothing with a beard driving a small tan or gold pickup truck, possibly a Chevrolet S-10.

{¶ 6} Initially, Deputy Leonello planned to go to Route 2 to try to locate the suspect, but dispatch then said the suspect was last seen driving south on a side street off Woodland Road. As a result, the deputy took Route 91 to I-90. He drove east on I-90 and then stopped in a turnaround near Route 306. Turnarounds on I-90 connect the eastbound and westbound lanes of traffic. While positioned perpendicular to I-90 westbound, Deputy Leonello observed oncoming traffic.

{¶ 7} Deputy Leonello said he was not just looking for Chevrolet S-10s; he was looking for any vehicle that fit the description, such as a Ford Ranger. The deputy said he was there for less than two minutes when he saw a small tan pickup truck, a Ford Ranger, travelling westbound. The deputy saw the driver was a black male wearing dark clothing; however, he could not see whether the driver had a beard because he was looking away from him. The truck was in the left (high-speed) lane, but travelling at a normal rate of speed.

{¶ 8} Deputy Leonello said that as the truck passed him, he still could not see the driver's face because he turned his head to the right and did not look toward him. The deputy then pulled out into the westbound lanes of travel and followed the truck. He was planning to stop and identify the driver. The deputy did not, however, activate his overhead lights; he just followed him, trying to get the number on his license plate.

{¶ 9} Then, as Deputy Leonello went under the Route 306 bridge, dispatch said the suspect vehicle was a tan Ford Ranger, not a Chevrolet S-10. The deputy said the truck he was following matched that description. He also said the description he had of the suspect fit the description of the male he was following, but he still could not tell if the driver had a beard.

{¶ 10} Deputy Leonello tried to call for back up, but could not get through. As he approached the Kirtland Road bridge, he saw a Willoughby Police cruiser positioned in a turnaround just west of the bridge. The deputy continued to follow the suspect, but still did not activate his overhead lights.

{¶ 11} The driver of the Willoughby Police cruiser positioned in the turnaround was Willoughby Police officer Charles Krejsa, a 20-year veteran police officer.

He testified he heard dispatch broadcast that a robbery had just occurred at the credit union. He heard the dispatch describe the suspect as a black male wearing a black shirt with a beard who had stolen cash and left the scene. After hearing the suspect was last seen driving south on Fairgrounds Road toward Route 84, Officer Krejsa believed the suspect was headed for I-90. As a result, the officer drove to Route 84, then to Route 306, and then onto I-90.

{¶ 12} Officer Krejsa said that about five minutes after he heard the initial dispatch, he pulled into the turnaround at the Kirtland Road overpass. Officer Krejsa said this location was about ten minutes away from where the suspect was last seen.

{¶ 13} Officer Krejsa said he was observing westbound traffic for one to two minutes when he saw a small, tan Ford Ranger pickup truck in the left-hand lane. He said that because it was similar to an S-10, it was "immediately apparent" this truck matched the description of the suspect vehicle. He said the radio band he was using does not provide all information being broadcast, and he did not hear the subsequent broadcast that the suspect vehicle was a Ford Ranger. Officer Krejsa said that as the driver of the truck drove by, he saw the driver was a black male wearing a black shirt; however, he said he could not see whether the driver had a beard because the male was looking away from him as he drove by.

{¶ 14} Officer Krejsa said he pulled out to follow the truck and, as he did, he noticed a Lake County Sheriff's vehicle was following the truck. Officer Krejsa said his intent was to see if there was any additional information he could get to "cement [his] suspicions" that this was the suspect vehicle. Officer Krejsa said that the overhead lights of the Sheriff's Office's cruiser were not activated at that time.

{¶ 15} Deputy Leonello testified that he radioed dispatch for a registration check on the truck. He provided the license plate number and a description of the truck. He did not hear back from dispatch, but, based on the information he had, he decided to stop the driver of the truck. Deputy Leonello activated his overhead lights. Officer Krejsa said that, in order to provide back up, he also activated his overheads.

{¶ 16} The officers testified the driver pulled his truck across the three lanes of traffic to the right berm without incident. Deputy Leonello exited his cruiser and Officer Krejsa parked behind his vehicle and exited his. Deputy Leonello called out to the driver, later identified as appellant, to exit his vehicle; keep his hands where he could see them; turn around; and walk backwards toward him. Appellant complied. Officer Krejsa told appellant he was being detained but not arrested and mirandized him.

{¶ 17} The officers saw appellant was wearing a black shirt and dark pants. Both said that appellant did not have a beard, but he had what appeared to be glue on his jaw and under his lower lip.

{¶ 18} The officers secured appellant in Officer Krejsa's cruiser because it was equipped with video and they then approached appellant's truck. They did not enter the truck at that time, but from the outside, they saw a black jacket in the back seat with $50 bills protruding from the pocket.

{¶ 19} Appellant did not present any opposing testimony or evidence and, thus, the officers' testimony was undisputed.

{¶ 20} When appellant's vehicle was later inventoried, officers found his robbery note on the floor near the center console; the exact amount of cash stolen from the bank in appellant's jacket, which was "bait" money (cash that is recorded for tracking purposes); and a three-page list of other banks with their locations, escape routes, and appellant's notes as to whether or not they would be good targets.

{¶ 21} Following a hearing, the trial court denied the motion to suppress.

{¶ 22} On October 19, 2015, pursuant to the parties' plea bargain, appellant pled no contest to robbery and the RVO specification as charged in Count 2 in exchange for the state's agreement to dismiss the remaining counts. The court found appellant's plea was voluntary, accepted the plea, and found him guilty of robbery and the RVO specification.

{¶ 23} At his sentencing, the trial court reiterated its findings under the RVO statute and sentenced appellant as an RVO. The court sentenced him to eight years in prison for robbery and to two years for the RVO specification, the two terms to be served consecutively to each other, for a total of ten years in prison.

{¶ 24} Appellant appeals, asserting three assignments of error. For his first, he alleges:

{¶ 25} "The trial court erred by denying the defendant-appellant's motion to suppress in violation of his due process rights and rights against unreasonable search and seizure as guaranteed by the Fourth, Fifth and Fourteenth Amendments to the United States Constitution and Sections 10 and 14, Article I of the Ohio Constitution."

{¶ 26} Appellant argues Deputy Leonello lacked reasonable suspicion to stop him and, thus, any evidence obtained as a result of the stop must be suppressed.

{¶ 27} Appellate review of a trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. State v. Burnside , 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8. During a hearing on a motion to suppress evidence, the trial judge acts as the trier of fact and is in the best position to resolve factual questions and assess the credibility of the witnesses. Id. ; State v. Mills , 62 Ohio St.3d 357, 366, 582 N.E.2d 972 (1992). "[T]he trier of fact * * * is in the best position to observe and evaluate the demeanor, voice inflection, and gestures of the witnesses." State v. Dach , 11th Dist. Trumbull Nos. 2005-T-0048 and 2005-T-0054, 2006-Ohio-3428, 2006 WL 1816251, ¶ 42."[T]he factfinder is free to believe all, part, or none of the testimony of each witness appearing before it." Warren v. Simpson , 11th Dist. Trumbull No. 98-T-0183, 2000 WL 286594, *3 (Mar. 17, 2000).

{¶ 28} An appellate court reviewing a motion to suppress is bound to accept the trial court's findings of fact where they are supported by some competent, credible evidence. State v. Guysinger , 86 Ohio App.3d 592, 594, 621 N.E.2d 726 (4th Dist.1993). Moreover, if the evidence is susceptible to more than one interpretation, a reviewing court must interpret it in a manner consistent with the verdict. Warren, supra . Accepting these facts as true, the appellate court independently reviews the trial court's legal determinations de novo. State v. Djisheff , 11th Dist. Trumbull No. 2005-T-0001, 2006-Ohio-6201, 2006 WL 3393344, ¶ 19.

{¶ 29} "A police officer may stop an individual if the officer has a reasonable suspicion, based on specific and articulable facts that criminal behavior has occurred * * *." State v. Tarrance , 11th Dist. Portage No. 2012-P-0073, 2013-Ohio-2831, 2013 WL 3367035, ¶ 19, citing Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An investigatory stop must be limited in duration and scope and can only last as long as necessary for an officer to confirm or dispel his suspicion of criminal activity. State v. Weimer , 11th Dist. Lake No. 2013-L-008, 2013-Ohio-5651, 2013 WL 6808959, ¶ 44, citing Terry, supra . A reasonable suspicion requires a minimal level of objective justification, i.e., something more than an unparticularized suspicion or hunch. Id. A brief stop of a suspicious individual to determine his identity or maintain the status quo while obtaining more information may be the most reasonable course of action in light of the facts known to the officer at the time. Id. at ¶ 46. "[A]n objective and particularized suspicion that criminal activity was afoot must be based on the * * * totality of the circumstances." State v. Andrews , 57 Ohio St.3d 86, 87, 565 N.E.2d 1271 (1991). "Furthermore, these circumstances are to be viewed through the eyes of the reasonable and prudent police officer on the scene who must react to events as they unfold." Id. at 87-88, 565 N.E.2d 1271.

{¶ 30} "A court reviewing the officer's actions must give due weight to his experience and training and view the evidence as it would be understood by those in law enforcement." Id. at 88, 565 N.E.2d 1271. Further, a police officer may rely on police radio dispatch to provide reasonable suspicion of criminal conduct to support an investigatory detention. State v. Burrows , 11th Dist. Trumbull No. 2000-T-0089, 2002 WL 605106, *5 (Apr. 19, 2002).

{¶ 31} Based on our review of the evidence, Deputy Leonello had a reasonable, articulable suspicion of criminal activity that warranted his investigatory stop of appellant. The deputy, who has 34 years experience as a police officer, learned from dispatch that a bank robbery had just been committed. Dispatch provided the deputy with the suspect's last known location and direction of travel, which led the deputy to conclude that the suspect would likely be headed to I-90 as a means of escape. Further, the deputy obtained a description of the suspect and his vehicle. In less than two minutes from establishing his position in the turnaround, Deputy Leonello saw appellant's vehicle, which matched the description of the suspect's truck in terms of the color, size, make, and model. Significantly, the deputy did not stop appellant until after dispatch advised the suspect vehicle was a Ford Ranger. Further, dispatch described the suspect as a black male wearing black clothing and a beard. When appellant passed Deputy Leonello while travelling westbound on I-90, the deputy saw a black male wearing dark clothes. The only reason the deputy was unable to confirm whether appellant had a beard was because he turned away when he saw the deputy. Appellant thus matched the suspect's description in terms of his gender, race, and clothing. As a result, when the deputy stopped appellant, he had a reasonable, articulable suspicion that he was the robber.

{¶ 32} Appellant's reliance on State v. Woods , 11th Dist. Lake No. 99-L-111, 2000 WL 1370850 (Sep. 22, 2000), in which this court invalidated a stop, is misplaced as its facts are easily distinguishable from those presented here. In Woods , the officer testified he stopped the defendant because he matched the suspect's description and made furtive movements. However, the suspect was described as wearing a black hooded nylon coat, while the defendant was wearing a green coat with a fur collar. Further, in Woods the officer's decision to look for the suspect near the entrance of the freeway was based only on a hunch that the freeway was the most likely means of escape, whereas, here, dispatch advised officers of appellant's escape route. Further, in Woods , the officer was not informed the suspect had a vehicle and thus was not informed of the description of a vehicle, while here, before Deputy Leonello stopped appellant, he had been informed that the suspect was driving a tan Ford Ranger and that was exactly the type of vehicle appellant was driving. Further, while this court in Woods held that the act of the defendant in turning his face from police was not a furtive movement, here, the state did not argue appellant's similar action was a furtive movement. Rather, the state relied on this evidence to explain why the officers could not confirm whether appellant had a beard.

{¶ 33} We therefore hold the trial court did not err in denying appellant's motion to suppress.

{¶ 34} For his second assigned error, appellant contends:

{¶ 35} "The trial court erred to the prejudice of the defendant-appellant when it sentenced him to an additional and consecutive two years in prison for a repeat violent offender specification."

{¶ 36} Appellant argues the trial court erred in sentencing him for the RVO specification because, he contends, the record did not support one of the required findings for that specification.

{¶ 37} The Supreme Court of Ohio, in State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, held that when reviewing felony sentences, appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). Id. at ¶ 1. Thus, applying the plain language of that statute, the Supreme Court held that "an appellate court may vacate or modify a felony sentence on appeal only if it determines by clear and convincing evidence that the record does not support the trial court's findings under relevant statutes or that the sentence is otherwise contrary to law." Id. The Court further held that "appellate courts may not apply the abuse-of-discretion standard in sentencing-term challenges." Id. at ¶ 10.

{¶ 38} R.C. 2929.14(B)(2)(b) sets forth the findings required for a trial court to sentence an offender for an RVO specification. That section provides, in pertinent part:

{¶ 39} The court shall impose on an offender the longest prison term authorized * * * for the [underlying] offense and shall impose on the offender an additional definite prison term [for the RVO specification] of one, two, three, four, five, six, seven, eight, nine, or ten years if all of the following criteria are met:
{¶ 40} (i) The offender is convicted of * * * a specification * * * that the offender is a repeat violent offender.
{¶ 41} (ii) The offender within the preceding twenty years has been convicted of * * * three or more offenses described in division (CC)(1) of section 2929.01 of the Revised Code [i.e., any felony of the first or second degree that is an offense of violence, such as aggravated robbery or robbery], including all offenses described in that division of which the offender is convicted * * * in the current prosecution and all offenses described in that division of which the offender previously has been convicted * * *, whether prosecuted together or separately.
{¶ 42} (iii) The offense * * * of which the offender currently is convicted * * * is * * * any felony of the second degree that is an offense of violence and the trier of fact finds that the offense involved * * * a threat to cause serious physical harm to a person * * *. (Emphasis added.)

{¶ 43} Appellant concedes the record supports the first and second required findings for an RVO specification. Thus, he concedes that under the first required RVO finding, he was convicted of an RVO specification in this case. He also concedes that under the second required RVO finding, he was convicted of three counts of aggravated robbery in one case in Cuyahoga County in 2009; that he was convicted of aggravated robbery in an unrelated case in that county that same year; that he was sentenced concurrently in both cases to five years in prison; that he was released from prison in 2014; and that, within one year of his release, while he was on post-release control, he committed the instant bank robbery.

{¶ 44} The only RVO finding appellant argues was not supported by the record is the third finding, i.e., that the current robbery involved a threat to cause serious physical harm to a person. In response, the state argues the note appellant presented to the teller at the time of the robbery supported the court's finding that appellant threatened to cause her serious physical harm.

{¶ 45} "While a plea of guilty is a complete admission of the defendant's guilt, a plea of no contest is not an admission of guilt, but is an admission of the truth of the facts alleged in the indictment * * *. Crim.R. 11(B)(1) and (2)." State ex rel. Stern v. Mascio , 75 Ohio St.3d 422, 423, 662 N.E.2d 370 (1996).

{¶ 46} The requirements regarding no contest pleas in misdemeanor cases are different from those in felony cases. While the trial court is required under R.C. 2937.07 to obtain an explanation of circumstances before accepting a no contest plea to a misdemeanor, Crim.R. 11 does not require an explanation of circumstances before the court accepts a no contest plea to a felony. State v. Williams , 8th Dist. Cuyahoga No. 103762, 2016-Ohio-7777, 2016 WL 6804967, ¶ 5, citing State v. Magnone , 2d Dist., 2016-Ohio-7100, 72 N.E.3d 212, ¶ 45. However, while not required, the trial court can ask for an explanation of circumstances before accepting a no contest plea to a felony. Id. at ¶ 8.

{¶ 47} The Supreme Court of Ohio has stated that "where the indictment * * * contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense." State v. Bird , 81 Ohio St.3d 582, 584, 692 N.E.2d 1013 (1998). An exception to this rule provides that when the trial court asks for an explanation of circumstances and that explanation negates the existence of an element of the offense, the trial court errs in finding the defendant guilty. Williams, supra .

{¶ 48} Further, "by pleading no contest to the indictment," a defendant "is foreclosed from challenging the factual merits of the underlying charge." Bird, supra. The essence of the no contest plea is that the defendant cannot be heard in defense. Mascio, supra , at 424, 662 N.E.2d 370. "[T]he defendant who pleads no contest waives the right to present additional affirmative factual allegations to prove that he is not guilty of the charged offense." Id.

{¶ 49} Here, during the plea hearing, appellant told the court it was his intention to plead no contest to both the charge and the specification . He also said he was admitting the truth of the facts set forth in the indictment and the facts to be presented by the prosecutor.

{¶ 50} After explaining the required findings for the RVO specification regarding appellant's prior and present convictions, the trial court advised appellant that there would also have to be a finding that he threatened to cause serious physical harm to the victim.

{¶ 51} Appellant said that he was voluntarily pleading no contest to robbery along with the RVO specification associated with that count and that he was asking the court to accept his plea.

{¶ 52} The court then asked the prosecutor for an explanation of circumstances. The prosecutor said that if the case had gone to trial, the evidence would have revealed that:

{¶ 53} On April 17, 2015, shortly before 1:00 P.M., the Buckeye State Credit Union * * * was robbed.
{¶ 54} The individual walked into the bank and handed a note to the teller. The note said,
{¶ 55} "1. Stay Calm. Don't raise your hands up or draw any attention.
{¶ 56} 2. I have a Loaded Gun on me.
{¶ 57} 3. Place All bills from the Drawer Onto the Counter.
{¶ 58} 4. I really don't want to hurt you, so Please:
{¶ 59} No Die (sic.) Packs, No Silent Alarms, No Bait Money, No GPS."
{¶ 60} In response to being provided that note the teller handed the individual * * * $1,972.
{¶ 61} The individual then left [the] bank. Upon arrival of Lake County Deputy Sheriffs, the employees describe[d] the suspect as being six foot tall, weighing approximately 200 pounds, being a black male with a beard * * *.
{¶ 62} The deputies * * * sent out a be-on-the-look-out broadcast. Several police officers, including Deputy * * * Leonello and Patrolman * * * Krejsa * * * set up on I-90 westbound. Deputy Leonello observed a [vehicle] fitting the description being driven by a black male pass[ ] him. About the same time Officer Krejsa also noted the vehicle.
{¶ 63} The two of them then proceeded to conduct a traffic stop. The driver of the vehicle was identified as Dawud A. Wilson. And upon stopping the vehicle the contents inside the vehicle in plain view were consistent with the information taken from the scene. In plain view was a large amount of currency * * *. The currency itself was bait money provided by the bank.
{¶ 64} In addition, a * * * coat contained $1,972 * * * in the * * * pocket. * * * They also found a * * * bag, which contained a typed robbery demand [note] * * * on the floor of the vehicle * * *[.]
{¶ 65} The following colloquy then took place between the court and appellant:
{¶ 66} THE COURT: [T]he Prosecutor has summarized what the evidence was going to show in your particular case. You heard that, correct?
{¶ 67} THE DEFENDANT: Yes, sir.
{¶ 68} THE COURT: * * * Are you * * * admitting the truth of the facts that the Prosecutor has set forth here in open Court today? * * *
{¶ 69} THE DEFENDANT: Yes.
{¶ 70} * * *
{¶ 71} THE COURT: [U]nderstanding the rights that you have, hearing now what the facts are and having reviewed the facts in the indictment, are you still admitting the truth of the facts by pleading no contest here today?
{¶ 72} THE DEFENDANT: Yes, sir.
{¶ 73} THE COURT: * * * [With respect to the RVO specification,] the court finds that * * * the Defendant has previously been convicted of offenses of violence, as noted in the repeat violent offender specification, also that the crime[ ] to which he is pleading is, in fact, an offense of violence by statute. Three counts of aggravated robbery, felonies of the first degree, October 16th, 2009. Also aggravated robbery, a felony of the first degree[,] October 16th of 2009, both in the Cuyahoga County Court of Common Pleas. The Court also makes the finding that the Defendant did, in the commission of the crime here today, threaten to cause serious physical harm to a person, thereby triggering the RVO.
{¶ 74} All of that being said, the Court needs to have the Defendant review once again the written plea of no contest form, make sure you still want to enter that plea based upon the findings here today. * * * Sign the document only if you still want to plead no contest.
{¶ 75} [DEFENSE COUNSEL]: Your Honor, Mr. Wilson has signed the written plea of no contest and I have signed it as well confirming that he has signed it. And I have discussed it and reviewed it with Mr. Wilson prior to Court as well.
{¶ 76} * * *
{¶ 77} THE COURT: * * * Finding the pleas to have been knowingly, intelligently, and voluntarily made, I will accept the no contest pleas that have both been made orally and in writing here in open Court today. With the findings and the reasons previously stated by the Court, I will find the Defendant guilty of the crime of robbery in violation of 2911.02(A)(2) of the Revised Code, a felony of the second degree as set forth in Count 2 of the indictment. I will also find him guilty of the repeat violent offender specification associated with Count 2 of the indictment as well.

{¶ 78} A "threat" intimidates or causes the victim to be afraid. Dayton v. Dunnigan , 103 Ohio App.3d 67, 71, 658 N.E.2d 806 (2d Dist.1995). Further, a threat may be express or implied. State v. Terzo , 12th Dist. Butler No. 2002-08-194, 2003-Ohio-5983, 2003 WL 22532890, ¶ 18.

{¶ 79} As indicated above, the robbery note appellant gave the teller said, "I have a Loaded Gun on me." The word "loaded" is in bold print, highlighted to stand out from the other type. Further, the note said, "I really don't want to hurt you, so Please: No Die (sic) Packs, No Silent Alarms, No Bait Money, No GPS." By pleading no contest and admitting he gave the teller a note saying he had a loaded gun and he would hurt her with it if necessary, appellant cannot dispute the note contained a threat that he would cause the teller serious physical harm if she did not comply with his demands.

{¶ 80} Appellant argues the note was not a threat because it said he did not want to hurt the teller. However, considering this phrase in context, he said that if she did not obey his instructions, he would hurt her.

{¶ 81} Further, appellant argues there was no evidence of a threat to cause serious physical harm because no evidence was presented that, during the robbery, he had a gun on him. However, the statement in appellant's note that "I have a Loaded Gun on me" was direct evidence he had a gun.

{¶ 82} Based on appellant's no contest plea and his stipulation to the indictment and the explanation of circumstances, the record supports the trial court's finding that appellant threatened to cause serious physical harm.

{¶ 83} Appellant also makes an Apprendi argument, arguing the trial court erred in sentencing him on the RVO specification after making a factual finding that a jury did not find and he did not admit, in violation of his right to a jury trial, pursuant to State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. Appellant is again referring to the court's finding that he threatened to cause serious physical harm. However, appellant's argument lacks merit because he waived his right to a jury trial on this issue and he admitted all facts necessary to allow the court to find he was a repeat violent offender.

{¶ 84} Appellant concedes that he failed to raise an Apprendi argument in the trial court; that he thus waived it; and that this court is limited to reviewing this issue for plain error.

{¶ 85} In State v. Hunter , 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, the trial court designated the defendant as a repeat violent offender based on his stipulation that he had a prior conviction for felonious assault with a specification that he caused "physical harm" (as required by the former version of the RVO statute). Hunter argued he had a right to have the jury make those findings. However, the Court in Hunter held that the court did not violate his right to a jury trial because: (1) Hunter waived his right to a jury trial, and (2) he stipulated to the facts necessary for the RVO specification.

{¶ 86} First, with respect to waiver, Hunter's case was tried to a jury, but he waived his right to a jury trial on the RVO specification. After the jury found appellant guilty of felonious assault, the court held a bench trial on the specification. The Supreme Court held that because Hunter chose to submit the RVO determination to the trial court, he waived any right he had to have the jury make this finding. Id. at ¶ 31.

{¶ 87} Here, in pleading no contest to the specification, appellant waived his right to a jury on that issue and essentially asked the court to determine the specification based on his admission of the truth of the facts alleged in the indictment and contained in the prosecutor's statement of facts.

{¶ 88} Second, the Hunter Court held that since Hunter admitted all facts necessary for the court to designate him as a repeat violent offender, including that he caused physical harm to the victim, the trial court did not need to conduct fact-finding and no Sixth Amendment violation occurred. Id. at ¶ 33.

{¶ 89} The dissent maintains that, although appellant admitted the truth of the prosecutor's statement of facts regarding his current conviction, the trial court should not have accepted those facts in enhancing his sentence. While the Supreme Court in Hunter upheld the trial court's acceptance of the defendant's stipulation to the facts of his prior conviction , the dissent suggests Hunter does not apply here because appellant stipulated to the facts of his current conviction. However, nothing in Hunter suggests a trial court may not accept a defendant's stipulation to the facts of his current conviction. It is important to note that, while judicial fact-finding for sentence enhancement is expressly limited to the facts of a prior conviction, stipulations (which also obviate the need for a jury) are not. Id. at ¶ 29.

{¶ 90} This court, in State v. Payne, 11th Dist. Lake No. 2004-L-118, 2005-Ohio-7043, 2005 WL 3610429, held that in order to be constitutionally permissible under Apprendi , "any fact , other than a prior conviction, must be determined by a jury or admitted by the appellant." (Emphasis added.) Id. at ¶ 114. Thus, any fact other than a prior conviction that is found by a jury or admitted by the defendant complies with Apprendi , regardless of whether it relates to a prior or current conviction.

{¶ 91} In Payne , this court said it was the trial court's findings as to the seriousness of the defendant's current conviction (per the former statute) that enhanced his sentence under the RVO specification, and these findings "should have been decided by a jury (if appellant did not admit them, which he did not)[.]" Id. at ¶ 116. Thus, this court implied that if a defendant admits the necessary findings regarding his current conviction, those findings need not be made by a jury.

{¶ 92} " 'A stipulation, once entered into and * * * accepted by the court, is binding upon the parties and is a fact deemed adjudicated * * *.' " State v. Carr , 2d Dist. Montgomery No. 23826, 2010-Ohio-6470, 2010 WL 5550241, ¶ 12, quoting 89 Ohio Jurisprudence 3d, Trial, Sec. 61. Thus, for RVO purposes, it makes no sense to draw a distinction between stipulations regarding the facts of a prior conviction and the facts of a current conviction. Once the defendant admits the facts recited by the prosecutor supporting a conviction, either prior or current, those facts are no longer in dispute. As the Court in Hunter said, where the defendant stipulates "to all the facts necessary for the trial court to designate him as a repeat violent offender," "the trial court ha[s] no need to conduct fact-finding * * * and no Sixth Amendment violation occurred * * *." Hunter at ¶ 32-33. That is exactly what happened here.

{¶ 93} The dissent's reliance on this court's decision in Payne, supra, in which this court held that the trial court violated Apprendi , is misplaced as the facts in Payne are distinguishable. Payne's case was tried by a jury, which found him guilty of the underlying offenses. At sentencing, the court enhanced the defendant's sentence based on the court's findings-from the testimony presented-that Payne caused physical harm in his prior conviction and serious physical harm in his current conviction, per the former RVO statute. Id. at ¶ 107-108. Payne did not waive the jury as to the specification and did not stipulate to the necessary findings, and this court properly held the trial court's fact-finding regarding his prior and current convictions violated Apprendi . Payne at ¶ 114.

{¶ 94} In contrast, here, appellant pled no contest to robbery and the specification, thus waiving the jury as to both, and admitted all facts necessary for the RVO specification as recited in the prosecutor's statement of facts. Before pleading, appellant told the court he would be admitting (1) the facts alleged in the indictment and (2) the facts to be presented by the prosecutor . Before hearing from the prosecutor, the court advised appellant, and he said he understood, that "there needs to be a finding, which would be today, that you threatened serious physical harm to the victim * * *." After the court notified him of this element, appellant said he was (1) voluntarily pleading no contest to robbery and the specification and (2) asking the court to accept his plea.

{¶ 95} Then, during the prosecutor's statement of facts, he said appellant handed the robbery note to the teller. In that note, appellant informed her that he had a loaded gun on him and indicated he would hurt her with it unless she followed his demands. After hearing the facts as outlined by the prosecutor, appellant admitted they were true . He thus essentially admitted he threatened to cause the teller serious physical harm. Appellant again asked the court to accept his plea. The court then found that appellant threatened to inflict serious physical harm on the teller, thus triggering the RVO statute.

{¶ 96} After making this finding, the court instructed appellant to again review the plea form to make sure he still wanted to plead based on the court's findings and to only sign the form if that was still his wish . After again reviewing the form with his attorney, appellant signed it, and the court found him guilty of robbery and the RVO specification.

{¶ 97} Since appellant waived his right to have the jury try the specification and admitted all facts necessary to enhance his sentence as an RVO, the trial court did not commit plain error in sentencing him.

{¶ 98} For his third and final assigned error, appellant alleges:

{¶ 99} "The trial court erred by sentencing the defendant-appellant to a maximum, eight-year prison sentence for robbery."

{¶ 100} Appellant concedes the trial court was required by R.C. 2929.14(B)(2)(b) to impose the longest possible prison term for his robbery offense (eight years) because the court also imposed a prison term for the RVO specification. He also concedes the trial court was not required to make any particular findings before imposing a maximum sentence and that, in imposing such sentence, the court was only required to consider the sentencing factors in R.C. 2929.11 and R.C. 2929.12. However, he argues that because, in his view, the court's finding that he threatened to cause serious physical harm (as to the RVO specification) was contrary to law, the eight-year term for robbery should also be vacated due to the court's alleged errors in imposing that sentence.

{¶ 101} First, appellant argues the court erred in finding that the teller suffered serious psychological harm per R.C. 2929.12(B)(2) because, in his view, that finding was not supported by the record. However, in considering this seriousness factor, the trial court stated:

{¶ 102} There was also serious psychological harm caused to the teller. Certainly, even though I don't have a written victim impact statement, I can imagine receiving the note * * * and the fear, the terror, [and] the concern for one's life and * * * well-being * * *. So I do find that there was serious psychological harm.

{¶ 103} The trial court thus found that serious psychological harm was a natural consequence of appellant giving the teller the note during the robbery.

{¶ 104} Further, appellant's own words at sentencing helped prove the psychological harm his actions caused the teller when he stated: "I do realize that my actions have caused a negative impact on [the tellers'] lives * * *."

{¶ 105} Second, appellant argues that the trial court erred in finding that no less seriousness factors were present because appellant said at sentencing that he did not intend to harm the teller. Appellant argues this comment supported the less serious factor in R.C. 2929.12(C)(3) (that the offender did not expect to cause physical harm). However, "[a] trial court is not required to give any particular weight * * * to a given set of circumstances; it is merely required to consider the statutory factors * * *." State v. DelManzo , 11th Dist. Lake No. 2007-L-218, 2008-Ohio-5856, 2008 WL 4877148, ¶ 23. Thus, despite appellant's comment at sentencing, the court was not required to give it any weight. The trial court was able to observe appellant while testifying and, in finding that no less serious factors were present, the court, as the trier of fact, obviously found appellant's comment lacked credibility.

{¶ 106} Based on our review of the record, the court considered the purposes and principles of felony sentencing in R.C. 2929.11 and the seriousness factors in R.C. 2929.11 in imposing appellant's sentence. We therefore hold appellant's maximum sentence for robbery was not contrary to law.

{¶ 107} For the reasons stated in this opinion, the assignments of error are overruled. It is the order and judgment of this court that the judgment of the Lake County Court of Common Pleas is affirmed.

DIANE V. GRENDELL, J., concurs,

TIMOTHY P. CANNON, J., concurs in part and dissents in part, with a Concurring/Dissenting Opinion.

TIMOTHY P. CANNON, J., concurring in part and dissenting in part.

{¶ 108} I dissent from the majority's opinion as it relates to appellant's second assignment of error, which asserts the trial court erred in its imposition of sentence on the repeat violent offender specification. The assignment of error has merit.

{¶ 109} When a repeat violent offender specification is properly alleged in an indictment, it is the trial court's duty to initially determine the issue of whether an offender should be designated a repeat violent offender ("RVO"). R.C. 2941.149(B). In State v. Hunter , the case cited by the majority in support of its holding, the defendant waived his right to a jury trial regarding the RVO specification to an indicted charge of felonious assault. 123 Ohio St.3d 164, 2009-Ohio-4147, 915 N.E.2d 292, ¶ 5. The specification was bifurcated from the felonious assault charge, and the specification was tried to the bench. Id. At that time, former R.C. 2929.01(DD) identified the findings the trial court was required to make when determining whether an offender should be designated an RVO; those findings related to the nature of the offender's previous convictions and the nature of the current offense. See id. at ¶ 12-20.

{¶ 110} The defendant in Hunter stipulated that, during the commission of his previous felonious assault conviction, he caused physical harm to the victim and had served a prison sentence on that previous conviction-factual findings required under former R.C. 2929.01(DD)(2)(a). Id. at ¶ 32. The trial court accepted this stipulation and designated the defendant an RVO. Id. at ¶ 29. On appeal, the defendant challenged his RVO designation on the basis that it violated his Sixth Amendment right to have a jury make the findings in former R.C. 2929.01(DD)(2)(a). Id.

{¶ 111} The Ohio Supreme Court held: "When designating an offender as a 'repeat violent offender' pursuant to former R.C. 2929.01(DD), a trial court does not violate the Sixth Amendment by considering relevant information about the offender's prior conviction that is part of the judicial record." Id. at paragraph two of the syllabus (emphasis added), following Shepard v. United States , 544 U.S. 13, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005). The Supreme Court's entire Hunter opinion related to the appropriateness of judicial factfinding only as it related to judicial records of prior convictions. It supported its holding with the following analysis: "Significantly, the Sixth Amendment does not limit a sentencing court's consideration to the existence of a prior conviction. On the contrary, the United States Supreme Court has held that courts may consider the information contained in court documents that are related to the prior conviction." Id. at ¶ 36 (emphasis sic). "[T]he Sixth Amendment does not bar judicial consideration of a defendant's prior convictions at sentencing because ' "recidivism * * * is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." ' " Id. at ¶ 35 (emphasis added), quoting Apprendi v. New Jersey , 530 U.S. 466, 488, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), quoting Almendarez-Torres v. United States , 523 U.S. 224, 244, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998).

{¶ 112} The majority opinion erroneously applies the holding in Hunter to the case sub judice, the facts of which are inapposite. Appellant herein challenges the trial court's factual finding of "serious physical harm" as it relates to appellant's current offense, not his prior convictions, and as it relates to his RVO sentencing enhancement, not his designation as an RVO.

{¶ 113} Former R.C. 2929.01(DD) has been rewritten and is now located at R.C. 2929.01(CC). The findings the trial court must make in order to designate an offender an RVO no longer include any finding related to "physical harm" or "serious physical harm."

{¶ 114} A finding of "serious physical harm" now becomes necessary only after the trial court has designated the offender an RVO and the matter is before the court for imposition of an enhanced penalty due to that designation. R.C. 2929.14(B)(2)(b). Even then, a finding of "serious physical harm" is only required when the "offense or offenses of which the offender currently is convicted or to which the offender currently pleads guilty is * * * any felony of the second degree that is an offense of violence[.]" R.C. 2929.14(B)(2)(b)(iii). And, even then, only if "the trier of fact finds that the offense involved an attempt to cause or a threat to cause serious physical harm to a person or resulted in serious physical harm to a person." Id.

{¶ 115} "Both the United States and Ohio Supreme Courts have explained that the historical role of the jury in finding facts necessary to convict or increase a sentence range is protected by the Sixth Amendment." State v. Oller , 10th Dist., 2017-Ohio-814, 85 N.E.3d 1135, ¶ 45, citing Alleyne v. United States , 570 U.S. 99, 133 S.Ct. 2151, 186 L.Ed.2d 314 (2013) ; Oregon v. Ice , 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009) ; United States v. Booker , 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) ; Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Ring v. Arizona , 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) ; Apprendi and Hunter , supra ; and State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.

{¶ 116} The factfinding relative to the "serious physical harm" component of R.C. 2929.14(B)(2)(b) therefore violates the Sixth Amendment if made by the trial court, as opposed to the jury. See State v. Bishop , 5th Dist. Stark No. 2014CA00190, 2015-Ohio-3023, 2015 WL 4554662, ¶ 19-21. In reaching this conclusion, the Fifth District followed the holding in Smith v. Petkovich , 562 F.Supp.2d 912, 922 (N.D. Ohio 2008), which explains:

The holding in Apprendi established that '[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.' 530 U.S. at 489 [120 S.Ct. 2348]. [Petitioner] received the statutory maximum of eight years for felonious assault. That the trial court then resorted to judicial factfinding to establish a separate additional sentence of nine years predicated on the Petitioner's repeat offender status and the assignment of the eight year statutory maximum for felonious assault, clearly marks the additional sentence as unconstitutional under Apprendi . Accordingly, [Petitioner's] independent nine-year sentence is contrary to clearly established federal law and he is entitled to habeas relief on the merits.

{¶ 117} Of course, as the majority notes, " 'nothing prevents a defendant from waiving his Apprendi rights [to a jury determination of every element of the charge].' " Hunter , supra , at ¶ 30, quoting Blakely , supra , at 310, 124 S.Ct. 2531. "[W]hile the Sixth Amendment generally prohibits judicial fact-finding, there is an 'exception for prior criminal convictions and the defendant's consent to judicial fact-finding .' "

Id. (emphasis sic), quoting Foster , supra , at ¶ 7.

{¶ 118} Here, however, appellant's no contest plea should not be construed as his consent to judicial factfinding on this issue. For the following reasons, the majority errs in holding otherwise.

{¶ 119} A no contest plea admits only the truth of the facts alleged in the indictment. Crim.R. 11(B)(2). Appellant pled no contest to robbery, a second-degree felony of which "serious physical harm" is not an element. The indictment did not allege "serious physical harm" in the robbery count or in the attached RVO specification. Therefore, not even a jury would have been permitted to find that appellant threatened "serious physical harm" to the victim under that count. As such, the trial court violated appellant's right to procedural due process. See , e.g. , Russell v. United States , 369 U.S. 749, 763-764, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962) (citations omitted).

{¶ 120} The error in this case was further compounded by the trial court's decision to act as the trier of fact in order to make that factual finding, which was neither alleged in the indictment nor admitted to by appellant, for purposes of penalty enhancement. This amounted to a violation of appellant's Sixth Amendment rights.

{¶ 121} The trial court was only permitted to enhance appellant's sentence relative to the RVO specification if a trier of fact found appellant's actions threatened, attempted, or resulted in "serious physical harm" to the victim. See State v. Brown , 10th Dist. Franklin Nos. 10AP-836, 2011-Ohio-3159, 2011 WL 2536456, ¶ 23, fn. 2 (holding the trial court properly enhanced the defendant's sentence for second-degree felony robbery only because the indictment for the attached RVO specification alleged "serious physical harm" and the jury instructions for the robbery count included a finding of "serious physical harm"); State v. Davis , 7th Dist. Mahoning No. 08 MA 152, 2009-Ohio-5079, 2009 WL 3068762, ¶ 36 (holding that, although the defendant may have in fact threatened to cause serious physical harm to the robbery victims, only the trier of fact was permitted to make such a finding for purposes of penalty enhancement). A trial court, however, does not try facts at a plea hearing; it simply determines whether there is a sufficient factual basis to support a plea to the indicted charge.

{¶ 122} Contrary to the majority's assertion, this holding is further supported by this court's opinion in State v. Payne , 11th Dist. Lake No. 2004-L-118, 2005-Ohio-7043, 2005 WL 3610429. Under the RVO statute at that time, the trial court was required, inter alia, to make an independent, judicial finding that "serious physical harm" occurred, or had been attempted, in the current conviction. Id. at ¶ 106, citing former R.C. 2929.01(DD). This court held that the trial court's finding of "serious physical harm," as it related to the current conviction, went "beyond what is constitutionally permissible under Apprendi and Blakely ; i.e., any fact, other than a prior conviction , must be determined by a jury or admitted by the appellant." Id. at ¶ 114 (emphasis sic). We held the defendant's constitutional rights, as set forth in Apprendi , Blakely , and Booker , were violated even though, at the time, the finding of "serious physical harm" was required when initially designating a defendant an RVO. Id. at ¶ 113. A constitutional violation is even more apparent when, as here, the trial court acts as the trier of fact under the current statutory scheme, because this finding must now be applied at the sentencing phase to enhance the penalty of a defendant who has already been designated an RVO. See , e.g. , State v. Payne , 11th Dist. Lake No. 2006-L-272, 2007-Ohio-6740, 2007 WL 4395051, ¶ 76, citing Payne , 2005-Ohio-7043, 2005 WL 3610429, at ¶ 104 (Grendell, J., concurring and dissenting) (recognizing the RVO designation and RVO sentence as distinct issues: "[T]he factfinding required before the imposition of additional penalties is separate and distinct from the factfinding required to determine an offender's status as a repeat violent offender. An offender may be determined to be a repeat violent offender without suffering the imposition of additional penalties."); see also id. at ¶ 63-64 (Cannon, J., concurring) (recognizing the distinction between judicial factfinding for sentencing purposes as opposed to judicial factfinding for designation purposes, the latter of which is now completely "capable of determination by public record of a prior conviction").

{¶ 123} At no time did appellant ever admit to threatening "serious physical harm" nor was it alleged in the indictment to which he pled no contest. To suggest there was an admission or stipulation of "serious physical harm" is a complete distortion of the record. Even the trial court understood that appellant had neither admitted nor stipulated to "serious physical harm," which is why the court stated it was required to make this finding "as the trier of fact." Again, a trial court does not try facts at a plea or sentencing hearing. Nevertheless, the court stated: "And again there needs to be a finding, which would be today, that you threatened serious physical harm to the victim in this particular case as well, or inflicted physical harm. Having sat through some earlier hearings, I think it was the threat of physical harm that's the real issue." It is also noteworthy that the trial court, in its initial statement of findings, concluded: "The Court specifically finds * * * [appellant] did threaten to inflict physical harm on the employee of Buckeye State Credit Union by virtue of the written letter[.]" However, the court subsequently stated: "The Court also makes the finding that the Defendant did, in the commission of the crime here today, threaten to cause serious physical harm to a person, thereby triggering the RVO."

{¶ 124} Appellant did admit to certain facts as presented by the prosecutor, e.g., that he handed a note to the teller indicating he was carrying a firearm. The majority is suggesting that because those facts may be sufficient to support a finding of "serious physical harm," the trial court was permitted to act as the trier of fact and enhance appellant's sentence accordingly. On that basis, the trial court could find appellant guilty of anything, regardless of the indictment or plea, based on a prosecutor's statement. Further, a statement of facts by a prosecutor in the face of a no contest plea does not constitute evidence. See State v. Magnone , 2d Dist., 2016-Ohio-7100, 72 N.E.3d 212, ¶ 46, citing State v. Green , 81 Ohio St.3d 100, 104, 689 N.E.2d 556 (1998). Thus, although appellant admitted to the facts as presented by the prosecutor at his plea hearing, that does not equate to an admission or stipulation to the characterization of those facts as threatening "serious physical harm." The trial court was not permitted to find that those facts equated to "serious physical harm" in order to enhance appellant's sentence. See Apprendi , supra , and its progeny.

{¶ 125} The majority opinion completely mischaracterizes and distorts what is stated in this dissent. The distinction between (a) factual findings that were properly made in a case already concluded, of which a future court may take judicial notice, and (b) factual findings that must be made by a trier of fact in a case still pending before the court, has been explained herein and cannot be made more clear.

{¶ 126} To summarize, there are two serious flaws in this case. First, appellant never, at any time, admitted or stipulated to threatening "serious physical harm." The prosecutor never stated that appellant threatened "serious physical harm." Nevertheless, the trial court proceeded to make a factual finding based on the facts presented by the prosecutor. Second, that finding was made even though it was not alleged in the indicted count to which appellant pled no contest.

{¶ 127} Appellant's two-year sentence for the RVO specification should be vacated, and this matter should be remanded for resentencing.


source: Caselaw Access Project

author: ABELE, J.

license: Public Domain

text:
    STATE of Ohio, Plaintiff-Appellee, v. Skip R. FERGUSON, Defendant-Appellant.
    No. 17CA7
    Court of Appeals of Ohio, Fourth District, Pickaway County.
    DATE JOURNALIZED: March 6, 2018
    Jerry L. McHenry, Pickerington, Ohio, for appellant.
    Judy C. Wolford, Pickaway County Prosecuting Attorney, and Heather MJ Armstrong, Pickaway County Assistant Prosecuting Attorney, Circleville, for appellee.
    DECISION AND JUDGMENT ENTRY

      Different counsel represented appellant during the trial court proceedings.

   ABELE, J.

{¶ 1} Skip R. Ferguson, defendant below and appellant herein, appeals his Pickaway County Common Pleas Court judgment of conviction and sentence for (1) four counts of rape in violation of R.C. 2907.02(A)(1)(b), and (2) four counts of rape in violation of R.C. 2907.02(A)(2), all first-degree felonies. Appellant assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:
"TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO APPELLANT BY FAILING TO OBJECT TO THE TESTIMONY OF THE STATE'S WITNESS MICHAEL MONFREDI, AS TO THE DNA EVIDENCE AND THE TESTING PROTOCOL, WHICH WAS PERFORMED IN PART BY SOME UNKNOWN BCI FORENSIC PERSON."
SECOND ASSIGNMENT OF ERROR:
"TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO SEEK TO SUPPRESS AND EXCLUDE FROM EVIDENCE, THE 'SUICIDE NOTE' FOUND ON A COMPUTER AT APPELLANT'S RESIDENCE."
THIRD ASSIGNMENT OF ERROR:
"TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL BY CONCEDING THE APPELLANT'S GUILT TO COUNT SEVEN OF THE INDICTMENT, WHICH WAS PREDICATED ON AND BUTTRESSED BY DNA EVIDENCE."
FOURTH ASSIGNMENT OF ERROR:
"TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL TO APPELLANT, BY FAILING TO REQUEST JURY INSTRUCTIONS AS TO ANY LESSER INCLUDED OFFENSES OTHER THAN RAPE."

{¶ 2} On September 1, 2016, Circleville Police Department Detective Phillip Roar filed two complaints that charged appellant with two counts of rape with two separate victims, both his daughters. The arrest report and probable cause affidavit stated that, on or about August 28, 2016, appellant's wife (Carrie) reported to the Circleville Police Department that her two daughters, K.F. (DOB 3/22/03) and R.F. (DOB 6/20/00), disclosed to her that appellant had engaged in sexual intercourse with them since the age of nine. The affidavit further alleged that appellant caused physical harm, or threatened to cause physical harm or death, to them by hitting or threatening to kill while brandishing a handgun. The affidavit further noted that the last date of this activity occurred on July 17, 2016, while at their Pickaway County residence. Furthermore, R.F. reported that appellant is the biological father of her child (DOB 2/20/15).

{¶ 3} On September 9, 2016, a Pickaway County Grand Jury returned an indictment that charged appellant with (1) four counts of rape, in violation of R.C. 2907.02(A)(1)(b), and (2) five counts of rape, in violation of R.C. 2907.02(A)(2). Appellant pled not guilty and requested a competency evaluation. Subsequently, the trial court found appellant competent to stand trial and granted the state's two motions to amend the indictment to correct typographical errors.

{¶ 4} At trial, Carrie testified that on August 28, 2016 she learned from her daughters that appellant had been having sexual relations with them for several years. When she confronted appellant, he told her "How can you dare say that I'm doing that? You do what you need to do. I have done nothing."

{¶ 5} After filing a report, Carrie took the girls to Columbus Children's Hospital for examination and left her other children at home in her mother's care. Appellant also remained in the home due to his medical condition.

{¶ 6} Shortly thereafter, officers arrived at the home to either assist Carrie in leaving with her children or asking appellant to leave the home. Carrie also advised officers that appellant might have a firearm. When officers entered the home, appellant refused to drop his weapon. An officer then tased appellant and transported him to the hospital.

{¶ 7} During the trial, Carrie testified that she, appellant, their children and her mother had lived at multiple Ohio residences. The family lived in Blacklick (Franklin County) until March 2006, moved to Chillicothe (Ross County) until 2012, moved to Stoutsville (Fairfield County) from August 2012 through October 2013, resided with Carrie's mother in Circleville (Pickaway County) from October 2013 until January 2014, and lived with appellant's mother in Wellston (Jackson County), then returned to Pickaway County in 2016. R.F. testified that she remembered being raped in the Blacklick home and at each home in which the family lived. K.F. also testified that appellant began to abuse her when she was 8 or 9 years old, and that she, too, had been molested in each home.

{¶ 8} The evidence also revealed that on February 20, 2015, R.F. gave birth to a daughter. Based on indications that the child could be the product of sexual abuse, officers obtained a search warrant for appellant's DNA. After submitting appellant's DNA, along with samples from both R.F. and her daughter, for analysis, Bureau of Criminal Investigation and Information (BCI) forensic scientist Michael Monfredi testified about the DNA analysis and stated that (1) appellant could not be excluded as the father of the child, (2) the evidence is 2,734,000 times more characteristic of appellant being the biological father than a random man, and (3) a 99.9999% probability exists that the child is appellant's biological child.

{¶ 9} Carrie also testified that she delivered appellant's laptop computer to Detective Roar. Carrie stated that her mother had actually purchased the laptop for her, but appellant used it almost exclusively.

Based on consent from Carrie and her mother, as well as a search warrant, Detective Roar's computer forensic analysis revealed multiple photographs that depicted suicide methods, as well as a document regarding the strengths and weaknesses of children's memories and how children can make false accusations. In addition, Detective Roar located a file that appeared to be a suicide note. In terms of a time frame, Detective Roar testified that the document about children's memories and false accusations was downloaded on August 28, 2016 at 8:47 p.m., the suicide images downloaded between 11:20 p.m. and 11:47 p.m., and the suicide note created around 11:45 p.m. Circleville Police Department Officer Kenneth Fisher testified that on August 28, 2016, officers arrived at the Ferguson home at 11:51 p.m., that Carrie arrived home from Children's Hospital at 12:30 a.m., and officers entered the home at 12:36 a.m.

{¶ 10} Concerning the suicide note, Detective Roar testified that the note states: "I have decided to commit suicide. I follow bushido. I will follow my teacher Musashi, in to ensure my family's honor. I shot myself in the head with a-There's just a period there. I also planned a provoked response from the police. Thank you if you helped me as I had this is not a cry for help. I am not depressed. I simply wish to depart in an honorable to my wife I will always love and be with you. To my children I love you all. I am sorry we didn't have more time together. To the rest of my family I love all of you. This is something I have considered for a very long time. Rationally and with great care I must do this. Skip."

{¶ 11} On March 7, 2017, after considering the evidence adduced at trial, the jury found appellant guilty of counts one, two, three, four, six, seven, eight, and nine, but not guilty on count five. Subsequently, the trial court (1) adjudicated appellant a tier III sex offender, (2) sentenced appellant to serve life in prison without parole on count three due to the special finding that the victim was under age ten at the time of the offense, and (3) sentenced appellant to serve 11 years on count one, 11 years on count two, 11 years on count four, 11 years on count six, 11 years on count seven, 11 years on count eight, and 11 years on count nine, with all sentences to be served consecutively to one another. This appeal followed.

I.

STANDARD OF REVIEW

{¶ 12} Because all of the assignments of error raise the issue of ineffective assistance of counsel, we first discuss the applicable standard of review. To evaluate an ineffective assistance of counsel claim, Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) sets forth the standard for judging ineffective assistance. "When a convicted defendant complains of the ineffectiveness of counsel's assistance, the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688, 104 S.Ct. 2052. Further, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. See also State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

{¶ 13} As the Supreme Court of Ohio instructed in State v. Sanders , 94 Ohio St.3d 150, 761 N.E.2d 18 (2002), " Strickland charges us to '[apply] a heavy measure of deference to counsel's judgments,' 466 U.S. at 691, 104 S.Ct. at 2066, 80 L.Ed.2d at 695, and to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. * * * [W]e note that courts must 'judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct.' Strickland , 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed.2d at 695." Sanders at 151, 761 N.E.2d 18.

II.

{¶ 14} In his first assignment of error, appellant asserts that trial counsel failed to object to the testimony of the state's witness concerning DNA evidence and testing protocol. Appellant argues that the fact that another unknown BCI forensic person performed a portion of the testing procedure and was not subject to cross-examination constitutes ineffective assistance.

{¶ 15} At trial, BCI forensic scientist Michael Monfredi, defined DNA and explained the process of a DNA comparison. Monfredi stated that he did much of the comparison work on the samples collected from appellant, his daughter, and her child. Monfredi also testified about how the BCI testing process is "technically reviewed, meaning that another qualified forensic scientist looked at all of the information from the laboratory, looks for the comparisons that I have made in the case, and makes their report, and makes their own conclusions based on all that information. And if our conclusion differs in any way, then we discuss that review process. That didn't happen in this case." Monfredi testified that appellant could not be excluded as the biological father of R.F.'s child, and that a 99.9999% probability exists that appellant is the biological father of the child.

{¶ 16} Appellant argues that because Monfredi did not personally perform every step of the procedure, and further described a process that included other BCI staff, this procedure violates appellant's constitutional right to confront witnesses because other participants in the process did not appear in court to testify, and Monfredi did not state with precision what actions the other scientists performed. Monfredi detailed his participation in the analysis, such as examining the three known standards and comparing the profiles that other scientists created. Appellant also points out that trial counsel did not object to this testimony, or challenge the evidence through any pre-trial motions.

{¶ 17} The Sixth Amendment to the United States Constitution, made applicable to the States through the Fourteenth Amendment, Pointer v. Texas , 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." In Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), after reviewing the Clause's historical underpinnings, the United States Supreme Court held that it guarantees a defendant's right to confront those "who 'bear testimony' " against him. Id. , 541 U.S. at 51, 124 S.Ct. 1354. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309, 129 S.Ct. 2527, 174 L.Ed.2d 314 (2009), citing Crawford at 54, 124 S.Ct. 1354.

{¶ 18} Appellant cites no authority other than Strickland v. Washington , supra, and United States v. Cronic (1984), 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657. However, as the state indicates Melendez-Diaz v. Massachusetts, supra, is an important case regarding the admissibility of lab results based on the Sixth Amendment confrontation clause. In Melendez-Diaz, the United States Supreme Court considered whether affidavits that report forensic analysis results are testimonial. "In short, under our decision in Crawford the analysts' affidavits were testimonial statements, and the analysts were 'witnesses' for purposes of the Sixth Amendment. Absent a showing that the analysts were unavailable to testify at trial and that petitioner had a prior opportunity to cross-examine them, petitioner was entitled to ' "be confronted with" ' the analysts at trial." Melendez-Diaz , 557 U.S. 305, 311, 129 S.Ct. 2527, citing Crawford , supra , at 54, 124 S.Ct. 1354. However, Melendez-Diaz did not address the admissibility of a second analyst's testimony, or whether the Sixth Amendment requires testimony from another analyst that performed the testing, or at least a portion of the testing procedure.

{¶ 19} The Twelfth District examined this issue in State v. Lopez , 186 Ohio App.3d 328, 2010-Ohio-732, 927 N.E.2d 1147 (12th Dist.), and noted that Melendez-Diaz dicta appears to answer this question. "The dissent in Melendez-Diaz sets forth the proposition that major delays will result by requiring live testimony from all those involved in testing and evaluating evidence against a defendant. After posing the question of what an 'analyst' is under the majority opinion, the dissent discusses a scenario in which one person prepares and tests a sample, a second person interprets the print-out of the test, a third calibrates the machine used to test the sample, and yet a fourth certifies that the tester followed established procedures. * * * In response, the majority states, '[C]ontrary to the dissent's suggestion we do not hold, and it is not the case, that anyone whose testimony may be relevant in establishing the chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in person as part of the prosecution's case." Lopez at ¶ 62, 64.

{¶ 20} Other Ohio appellate courts have also held, based on Melendez-Diaz , that it is not necessary to call every analyst who may have been involved in the testing process. See State v. Middlebrooks , 6th Dist. Lucas No. L-08-1196, 2010-Ohio-2377, 2010 WL 2161796 ; State v. Lanier , 7th Dist. Mahoning No. 09MA97, 2010-Ohio-6382, 2010 WL 5541690. Courts in other jurisdictions have also arrived at the same conclusion. See Pendergrass v. States , 913 N.E.2d 703 (Ind.2009), People v. Johnson , 394 Ill.App.3d 1027, 915 N.E.2d 845, 333 Ill.Dec. 774 (2009), and Carolina v. State 302 Ga.App. 40, 690 S.E.2d 435 (2010). Further, as noted in Lopez , federal courts have applied Melendez-Diaz in a similar fashion. See Larkin v. Yates , C.D. Cal. No. CV09-2034-DSF, 2009 WL 2049991 (July 9, 2009). Also, the jury heard testimony about the process and could assign whatever weight to that evidence that it deemed appropriate.

{¶ 21} Accordingly, because we conclude that appellant did not satisfy the first prong of Strickland , we overrule his first assignment of error.

III.

{¶ 22} In his second assignment of error, appellant asserts that trial counsel's failure to seek to exclude from evidence the "suicide note" found on appellant's computer constitutes ineffective assistance.

{¶ 23} After appellant's arrest, Carrie delivered a laptop computer to the police. Carrie testified that although her mother purchased the computer for her, appellant was the primary user. A forensic examination of the computer revealed a suicide note, articles, pictures that involve suicide and information about why children might make false accusations. Although the trial court did not admit into evidence the documents regarding children lying about sexual molestation or the documents and photos of suicide, counsel did not object to Detective Roar reading the suicide note to the jury and admitting the note into evidence.

{¶ 24} Generally, decisions regarding the admissibility of evidence are within a trial court's broad discretion. State v. Hymore , 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). A decision to admit or to exclude evidence will be upheld absent an abuse of discretion. O'Brien v. Angley , 63 Ohio St.2d 159, 163, 407 N.E.2d 490 (1980). Additionally, even if a court abuses its discretion, a judgment will not be disturbed unless the error affected the substantial rights of the adverse party or is inconsistent with substantial justice. Id. at 164, 407 N.E.2d 490.

{¶ 25} In the case sub judice, appellant first argues that the note's authorship is uncertain. However, the record reveals that someone drafted the note less than an hour before police entered the home on August 28, 2016, and just hours after appellant's wife confronted appellant regarding the allegations. Carrie also testified about the time frame when she learned of the allegations, when she confronted appellant, when she visited the police, when she visited Children's Hospital and when she arrived home. Officer Fisher testified that he visited the home that night and Carrie arrived sometime after midnight. It appears from the time stamps on the items found on the laptop, and the fact that appellant is the only person who uses the laptop (with very limited exceptions-such as appellant allowing Carrie to occasionally play games), ample evidence exists on which to draw a conclusion regarding appellant's authorship of the note.

{¶ 26} Second, appellant contends that the note constitutes "other acts" evidence in violation of Evid.R. 404(B), which provides: "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." The state argues that the note demonstrates appellant's state of mind at the time officers entered the home.

{¶ 27} Evidence of other acts may be admissible if (1) substantial proof exists that the defendant committed the alleged other acts, and (2) the evidence tends to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616 (1994), citing State v. Broom , 40 Ohio St.3d 277, 282-283, 533 N.E.2d 682, 690-691 (1988) ; Evid.R. 404(B) ; R.C. 2945.59. In Lowe , at the defendant's aggravated murder trial the trial court, and later the court of appeals, ruled that evidence regarding the defendant's activities with girls, including the victim's daughters, which included dissemination of sexually explicit material, constituted proper other acts evidence. However, the Ohio Supreme Court held that the evidence met none of the exceptions in the rule such as evidence of identity or modus operandi.

{¶ 28} In State v. Jones , 4th Dist. Scioto No. 06CA3116, 2008-Ohio-968, 2008 WL 613116, after the defendant's convictions for the possession of a controlled substance, trafficking in drugs, and carrying a concealed weapon, this court concluded that the prior acts evidence used to portray the defendant as a known drug dealer did not demonstrate preparation, plan, scheme, or modus operandi. Thus, counsel's failure to object to the introduction of the other acts evidence constituted deficient performance. Id. , ¶ 38-41. Moreover, as we turned to the question of prejudice, we concluded that because the record did not contain overwhelming evidence of guilt, a reasonable probability existed that the outcome of the trial would have been different in the absence of the other acts evidence. Id. at ¶ 42.

{¶ 29} In the case sub judice, even if we assume the purposes of argument that the suicide note did not demonstrate preparation, plan, scheme, or modus operandi, we nevertheless conclude that, in view of the overwhelming evidence of guilt, no prejudice resulted from the note's admission into evidence. Here, the testimony of appellant's wife and daughters, along with scientific DNA evidence, constitutes overwhelming evidence of appellant's guilt. See, e.g., People v. Dolan , 858 N.Y.S.2d 490, 51 A.D.3d 1337 (2008) [any error in the admission of the contents of the defendant's suicide note in a prosecution for attempted kidnapping and assault, was harmless due to overwhelming evidence of guilt]. Once again, aside from the note, the evidence included the testimony of law enforcement officers, appellant's wife, the two victim daughters, as well as DNA evidence that established a 99.999% probability that appellant is the biological father of his daughter's child.

{¶ 30} Accordingly, because the failure to object to this evidence did not affect the outcome of appellant's trial, we overrule appellant's second assignment of error.

IV.

{¶ 31} In his third assignment of error, appellant asserts that trial counsel's act of conceding appellant's guilt as to count seven of the indictment, which is predicated on DNA evidence, constitutes ineffective assistance. At trial, counsel stated: "So I'm not arguing, you know, that none of this happened, obviously we know that one of them did * * * I mean I'm not going to stand up here, and say, you know, we're on the moon when we're on earth, because Count Seven is pretty well penned [sic.] down, and I'm not going to stand here and try to argue against that. But I'm trying to keep my credibility, and I'm trying to keep the credibility of the system. * * *" Appellant argues that his trial counsel had greater concerns with maintaining his own, personal credibility rather than defending his client against the charges.

{¶ 32} The United States Supreme Court has held that defense counsel's failure to obtain a defendant's express consent to a strategy of conceding guilt at the guilt phase of a capital trial did not automatically render counsel's performance deficient. See Florida v. Nixon, 543 U.S. 175, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). Moreover, in United States v. Creech , E.D.Kentucky No. CR 6:03-23-DCR, 2011 WL 250998 (Jan. 26, 2011), the United States District Court, E.D. Kentucky summarized the treatment of this issue in federal courts: "Numerous courts have held that a concession of guilt on some counts of a multi-count indictment can constitute a reasonable trial strategy. See United States v. Thomas , 417 F.3d 1053, 1058 (9th Cir.2005) ('[I]n some cases a trial attorney may find it advantageous to his client's interests to concede certain elements of an offense or his guilt on one of several charges.' (internal citations omitted) ); United States v. Holman , 314 F.3d 837, 839 n. 1, 840-41 (7th Cir.2002) ('[C]onceding guilt on one count of a multi-count indictment to bolster the case for innocence on the remaining counts is a valid trial strategy which, by itself, does not rise to the level of deficient performance.'); Farrington v. Senkowski , 214 F.3d 237, 244 (2d Cir.2000) (finding no Strickland violation where defense counsel conceded defendant's guilt on attempted larceny charge in an effort 'to persuade the jury to acquit on the more serious charge'); Young v. Catoe , 205 F.3d 750, 759 (4th Cir.2000) ('[C]ounsel's concession of a client's guilt does not automatically constitute deficient performance.'). However, other courts have added the requirement that when the concession is so far-reaching as to amount to a guilty plea, the attorney must obtain the defendant's consent before making that decision. See, e.g. , Valenzuela v. United States , 217 Fed.Appx. 486, 490 (6th Cir.2007)." Id. at p.3.

{¶ 33} Count seven alleged that appellant engaged in sexual conduct with R.F. "On or about the 1st day of January, 2014 through the 31st day of May 2016." The evidence established that R.F. gave birth on February 20, 2015, and that DNA evidence established a 99.999% probability that appellant is the biological father of his daughter's child. The state contends that appellant's trial counsel's candid and realistic statements enhanced defense credibility with the jury and focused the jury's attention on the portion of the case that appellant actually contested. We recognize that the record does reveal that defense counsel continued to argue against convictions on the other eight counts of the indictment, as well as the special findings in counts one through three concerning the victims' ages. In fact, as the state notes, counsel's strategy was partially successful as the jury (1) found appellant not guilty of count five, and (2) failed to find beyond a reasonable doubt in counts one and two that the victim was under age ten.

{¶ 34} It does appear that in the case sub judice, counsel's decision to acknowledge the indefensible, but mount challenges to the other charges, constitutes a valid trial strategy. Moreover, even if we assume, arguendo, that appellant received ineffective assistance under the first prong of Strickland, we believe, after our review of the evidence, that counsel's performance with respect to count seven did not affect the outcome of this case. Once again, DNA evidence established a 99.9999% probability that appellant is the father of his daughter's child. Also, R.F. testified that she had not been sexually active with anyone else during the time that her father molested her. The state further points out that the trial court instructed the jury that counsel's closing arguments are not evidence. See State v. Wade, 4th Dist. Ross No. 14CA3435, 2015-Ohio-997, 2015 WL 1227868 at ¶ 24 ; State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023 at ¶ 138. Additionally, while appellant argues that the concession of guilt to count seven cannot be construed as trial strategy because he would still have received a life sentence without the possibility of parole even if all other counts had resulted in acquittals, it appears that count seven did not carry a maximum penalty of life in prison without the possibility of parole. Rather, Count seven carried a maximum sentence of eleven years. Counts one through three required special findings that the victim was under age ten at the time of the offense, and, thus, are the counts that carried a life imprisonment consequence. R.C. 2907.02(B).

{¶ 35} Once again, our review of the evidence reveals overwhelming evidence of appellant's guilt that " 'reduced the likelihood that the jury's decision was influenced by the argument.' " State v. Leonard , 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229 at ¶ 169, quoting Darden v. Wainwright , 477 U.S. 168, 182, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). Thus, we do not believe that counsel's concession of appellant's guilt to count seven prejudiced appellant.

{¶ 36} Accordingly, we overrule appellant's third assignment of error.

V.

{¶ 37} In his fourth assignment of error, appellant asserts that trial counsel's failure to request jury instructions for any lesser included offenses constitutes ineffective assistance.

{¶ 38} In particular, appellant argues that (1) the trial court gave standard jury instructions as to the rape charges, but did not give any lesser included offense instructions; and (2) defense counsel failed to request any lesser included offense instructions. Appellant argues that because the victim's statements at various points during the trial appeared to be somewhat ambiguous, the jury should have received lesser included offense instructions.

{¶ 39} In general, determining whether a lesser included offense instruction is warranted involves a two-part test. State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, 2016 WL 1071457, ¶ 76, citing State v. Deanda , 136 Ohio St.3d 18, 2013-Ohio-1722, 989 N.E.2d 986, ¶ 6 ; State v. Wilson , 4th Dist. Scioto App. No. 13CA3542, 2015-Ohio-2016, 2015 WL 3384507, ¶ 42-44. "First, a trial court must determine if the requested charge is a lesser included offense of the charged crime. Id. ; State v. Kidder , 32 Ohio St.3d 279, 281, 513 N.E.2d 311 (1987). Second, the court must consider the evidence: 'The trial court, after reviewing the evidence, determines whether an instruction on lesser included offenses is appropriate. The trial court must give an instruction on a lesser included offense if, under any reasonable view of the evidence, it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense.' " Fouts at ¶ 76, citing State v. Wine , 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207, ¶ 34.

{¶ 40} "A trial court has broad discretion to decide how to fashion jury instructions, but it must 'fully and completely give the jury all instructions which are relevant and necessary for the jury to weigh the evidence and discharge its duty as the fact finder.' " State v. White , 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, citing State v. Comen , 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. Generally, appellate courts will not reverse that determination absent an abuse of discretion. An abuse of discretion implies that the court's attitude is arbitrary, unreasonable, or unconscionable. State v. Keenan , 143 Ohio St.3d 397, 2015-Ohio-2484, 38 N.E.3d 870, ¶ 7, citing State v. Adams , 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Moreover, "[i]n determining whether lesser included offense instructions are appropriate, "the trial court must view the evidence in the light most favorable to the defendant." State v. Monroe , 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 37. "The mere fact that an offense can be a lesser included offense of another offense does not mean that a court must instruct on both offenses where the greater offense is charged." State v. Wilkins , 64 Ohio St.2d 382, 387, 415 N.E.2d 303 (1980).

{¶ 41} The Supreme Court of Ohio revisited this issue in State v. Wine , 140 Ohio St.3d 409, 2014-Ohio-3948, 18 N.E.3d 1207 : "Regardless of who reaps the benefit of the rule, this court has held that a charge on a lesser included offense is required when the facts warrant it and improper when the facts do not warrant it: 'If the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged and for the state on the remaining elements, which by themselves would sustain a conviction on a lesser-included offense, then a charge on the lesser-included offense is required. Conversely, if the jury could not reasonably find against the state on an element of the crime, then a charge on a lesser-included offense is not only not required, but is also improper.' " (Emphasis sic; citation omitted.) Id., citing State v. Kilby , 50 Ohio St.2d 21, 24-25, 361 N.E.2d 1336 (1977). Thus, the Wine court restated the rule as follows: "If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense." Wine at ¶ 25, citing Wilkins at 388, 415 N.E.2d 303.

{¶ 42} It is important to understand that a lesser included offense instruction is not warranted every time "some evidence" is offered to support the lesser offense. State v. Shane , 63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). In fact, Wine noted the "potential perils of pervasive lesser-included-offense jury instructions for defendants in cases in which the facts do not support the lesser charge." Wine at ¶ 22. Further, Wine observed that "a compromise verdict could be more likely in cases in which the defendant presents an all-or-nothing defense. * * * This court has therefore left no doubt that it is the quality of the evidence offered, not the strategy of the defendant, that determines whether a lesser-included-offense charge should be given to a jury." Wine , at ¶ 23, 26. However, trial counsel's failure to request instructions on lesser included offenses is often a matter of trial strategy and does not per se establish ineffective assistance of counsel. State v. Griffie , 74 Ohio St.3d 332, 658 N.E.2d 764 (1996), citing State v. Clayton , 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Thus, defense counsel's decision to forego an instruction on lesser included offenses, and instead seek an acquittal rather than inviting conviction on a lesser offense, can constitute trial strategy.

{¶ 43} Our review of the evidence in the instant case indicates that appellant chose to present an "all-or-nothing" defense. Appellant did not attempt to argue that he may have participated in lesser gradations of sexual conduct or contact with the victims. Instead, appellant argued that no sexual abuse occurred, while the victims' testimony indicated vaginal rape. Thus, jury instructions for any lesser included offenses would have been inappropriate because the evidence did not, even when considered in a light most favorable to the appellant, present a fact pattern that would have resulted in an acquittal on the rape charges, but a conviction for any other lesser included offense.

{¶ 44} The Supreme Court of Ohio has held that "[a] criminal defendant is not entitled to a jury instruction on gross sexual imposition as a lesser included offense of rape where the defendant denied participation in the alleged offense, and the jury, considering such defense, could not reasonably disbelieve the victim's testimony as to 'sexual conduct,' R.C. 2907.01(A), and, at the same time, consistently and reasonably believe her testimony on the contrary theory of mere 'sexual contact,' R.C. 2907.01(B)." State v. Johnson 36 Ohio St.3d 224, 522 N.E.2d 1082 (1988), paragraph two of the syllabus; State v. Thomas , 40 Ohio St.3d 213, 533 N.E.2d 286 (1988), paragraph two of the syllabus ("[e]ven though an offense may be statutorily defined as a lesser included offense of another, a charge on such lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal on the crime charged and a conviction upon the lesser included offense"). "The trial court, after reviewing the evidence, determines whether an instruction on lesser included offenses is appropriate. The trial court must give an instruction on a lesser included offense if under any reasonable view of the evidence it is possible for the trier of fact to find the defendant not guilty of the greater offense and guilty of the lesser offense." Wine at ¶ 34.

{¶ 45} Consequently, after our review of the record in the case sub judice we cannot conclude that counsel's failure to seek lesser included offense instructions, when the evidence did not, in fact, warrant such instruction, constitutes ineffective assistance.

{¶ 46} Accordingly, based upon the foregoing reasons, we overrule appellant's fourth assignment of error and affirm the trial court's judgment.

JUDGMENT AFFIRMED.

Hoover, P.J. & McFarland, J.: Concur in Judgment & Opinion

      Carrie testified that appellant had back surgery in 2014, that he improved slightly, but became confined to a wheelchair after a few weeks, stating that he could no longer walk. However, Carrie also testified that appellant's physical disability did not impede his ability to engage in sexual activities and that the two were sexually active until his arrest.

      Pursuant to R.C. 2901.12(H), the state included in the indictment offenses committed in counties other than Pickaway based on the theory of a continuous course of conduct.

      "Bushido" is apparently a Japanese term that refers to "the way of the warriors" and involves the Samurai codes of honor. We assume that this code of honor does not include the type of activities for which appellant has been convicted.

      We recognize that the issue of trial counsel conceding guilt over a defendant's express objection is currently under consideration in the United States Supreme Court. On January 17, 2018, the court heard oral argument on this issue in McCoy v. Louisiana , Case No. 16-8225. In McCoy , counsel argued that because the defendant suffered from severe emotional issues that clouded his judgment in making rational decisions, counsel's strategy to admit guilt reduced the likelihood of the imposition of the death penalty.