[Cite as State v. Dover,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2013-CA-58 Plaintiff-Appellee : : Trial Court Case No. 12-CR-511B v. : : JEREMY DOVER : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 30th day of May, 2014.

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LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office 50 East Columbia Street, 4th Floor, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee

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

.............

FAIN, J.

{¶ 1} Defendant-appellant Jeremy Rashaun Dover appeals from his conviction and 2

sentence for Aggravated Robbery (Use of Deadly Weapon), in violation of R.C. 2911.01(A)(1), a

felony of the first degree, with a firearm specification. Dover contends that the jury’s finding

that a deadly weapon was used in the commission of the offense is against the manifest weight of

the evidence, that the trial court erred in overruling his request for a jury instruction on the

lesser-included offense of Theft, and that the trial court abused its discretion by imposing the

maximum prison term.

{¶ 2} We conclude that the judgment is not against the manifest weight of the

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

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

judgment of the trial court is Affirmed.

I. The Offense

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

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

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

for the Liedertafel summerfest. She received about $300 in quarters, the rest in paper currency.

It was about 4:00 in the afternoon on July 13, 2012. She already had $250 in her purse.

{¶ 4} Dover and two confederates, Richard Becraft and Laune Dozier, were also in

the bank. Becraft was cashing a check.

{¶ 5} After Dixon got the cash withdrawal, she made some dairy purchases in the

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

car. When she was ten to twenty feet from her car, she was robbed of her purse, at gunpoint. 3

Dover was the man who held the gun to her back and demanded that she give the money or he

would kill her. Becraft was the man who took the purse. Dozier was also present.

{¶ 6} Once the three men had the purse, they ran off. A box containing the $300 in

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

cell phone and other items, was in the purse. Dixon used another woman’s cell phone to call

911 and report the robbery.

{¶ 7} Cheryl Sample, who was in a car with her granddaughter and husband, saw three

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

into a van being driven by a woman, and drive off. Sample and her husband, who was driving,

followed the van. Sample called 911.

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

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

The money and Dixon’s cell phone were never recovered.

II. The Course of Proceedings

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

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

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

with Having a Weapon While Under a Disability, in violation of R.C. 2923.13(A)(3), a felony of

the third degree. Following a jury trial, Dover was convicted of Aggravated Robbery, with the

firearm specification, but he was acquitted of the two weapons counts.

{¶ 10} Dover was sentenced to eleven years in prison, the maximum sentence for 4

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

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

appeals.

III. A Procedural Note

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

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

admitted in evidence at the trial.

{¶ 12} This court was unable to retrieve any audio or visual signal from State’s Exhibit

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

which is written “12-34 324, 7-20-12, 1410 to 1436 HRS, JEREMY DOVER,” and asserted that

it contains a copy of the audiovisual recording admitted as State’s Exhibit 4-A. This court has

been able to play this compact disc on its office computers. Dover’s appellate counsel was kind

enough to play this compact disc immediately following the oral argument of this case, and

confirms that it does, indeed, contain an authentic copy of the audiovisual recording of Dover’s

police interrogation. Accordingly, we have added this compact disc to our record, and are

treating it as an authentic representation of the recording of Dover’s police interrogation that was

admitted in evidence in the trial court as State’s Exhibit 4-A. The compact disc marked as

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

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

of the Offense Is Not Against the Manifest Weight of the Evidence [Cite as State v. Dover,

.] {¶ 13} Dover’s First Assignment of Error is as follows:

APPELLANT’S CONVICTIONS FOR ROBBERY AND HAVING A

WEAPON UNDER DISABILITY WERE AGAINST THE MANIFEST WEIGHT

OF THE EVIDENCE.

{¶ 14} Dover was not convicted of Having a Weapon While Under a Disability.

{¶ 15} Dover’s argument in support of this assignment of error depends upon his

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

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

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

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

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

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

{¶ 16} In support of Dover’s assertion that the jury lost its way in finding that he used a

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

that he used a gun besides Dixon’s testimony. No other witnesses saw a gun, and no gun was

found. We find this argument unpersuasive. No other witnesses were present when the robbery

occurred. Two witnesses who testified at the trial went to aid and comfort Dixon, who was

obviously in distress, but shortly after the robbery and after the three robbers had fled. Cheryl

Sample saw the three men fleeing, but after they had left the Kroger parking lot where the

robbery occurred. In our view, the fact that these witnesses did not see a gun is not inconsistent

with Dixon’s testimony. The robbery of Dixon’s purse having been completed, it would be

natural for Dover to conceal it on his person while fleeing the scene. And the fact that a gun was

not found is also unremarkable. Dixon’s cell phone and the money were not found either. 6

There would not seem to have been any reason for Dover to have left the gun behind, where it

could be found.

{¶ 17} Dover also argues that Dixon’s trial testimony that a gun was placed at her back

is inconsistent with her statement during the 911 call that a gun was pointed at her head. We

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

upset, with the 911 operator repeatedly having had to ask Dixon to take deep breaths, in order to

obtain a coherent account. The jury could reasonably discount the inconsistency in Dixon’s

911-call reference to the gun being pointed at her head as having been a misstatement attributable

to her agitated emotional state.

{¶ 18} Finally, Dover argues that Dixon’s testimony is unworthy of belief, because she

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

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

seen. The testimony upon which this argument is based is worth quoting in full:

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

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

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

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

A. Yes, sir.

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

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

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

A. He was in back of me. [Cite as State v. Dover,

.] Q. Directly behind you?

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

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

looked to my right, he was right here.

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

A. He was in back. I – I don’t know. Who – is Jeremy the one in the

white shirt? Is that what you’re asking?

Q. The teal shirt.

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

Q. The man behind you, directly behind you?

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

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

A. Yes.

Q. To your right?

A. Yes.

{¶ 19} In our view, the jury could reasonably have taken the above-quoted testimony to

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

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

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

between Dixon and Dover.

{¶ 20} To be sure, the discrepancy between Dixon’s 911-call statement and her trial

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

standing between Dixon and Dover, preventing Dixon from seeing the object allegedly pushed 8

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

Dover could fairly argue to the jury as a basis for finding reasonable doubt. But none of these

points, taken individually or collectively, persuade us that the jury lost its way in choosing to

credit Dixon’s testimony that Dover pointed a gun at her back and demanded that she give them

her purse, or he would kill her.

{¶ 21} Dover’s First Assignment of Error is overruled.

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

{¶ 22} Dover’s Second Assignment of Error is as follows:

THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED THE

MAXIMUM SENTENCE ON APPELLANT.

{¶ 23} In State v. Rodeffer,

,

, ¶ 29 (2d Dist.), we held

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

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

opinions from this court have expressed reservations from some judges of this court whether that

decision in Rodeffer is correct. See, e.g., State v. Garcia, 2d Dist. Greene No. 2013-CA-51,

. In the case before us, we find no error in the sentence imposed under

either standard of review.

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

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

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

Defendant scored high on the risk assessment. The Court also finds factors 9

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

suffered serious psychological and economic harm as a result of the offense. I

don’t find any factors making it less serious.

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

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

delinquent child and has a history of criminal convictions, and the Defendant has

not been rehabilitated to a satisfactory degree after being adjudicated a delinquent

and has not responded favorably to sanctions previously imposed. Like the

Prosecutor, I find no genuine remorse for this offense.

The Defendant has served prior prison terms, both, for robbery in 2002, for

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

This particular crime seems to be one of convenience and opportunity in

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

the Defendant and his friends, the co-Defendants,1 were in line behind her. The

plan appears to have been placed into effect quite rapidly. The Defendant had a

firearm on or about his person, which I don’t believe was brought to the bank for

the purpose of robbing this victim, but he simply had a firearm, which would

indicate to the Court that should an opportunity arise, he was ready and willing to

participate in the commission of a crime.

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

statutes, to protect the community and punish the offender, the offender should be

1 Dover was tried separately from his co-defendants. 10

sentenced to a term of imprisonment of 11 years for the aggravated robbery.

Further, for the firearm specification, the Defendant is sentenced to three years in

prison, which is required under the statute and is required to be served consecutive

to the 11 years for a total of 14 years.

{¶ 25} We find nothing wrong with the trial court’s reasoning. Dover’s prior record

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

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

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

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

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

crime of violence just waiting to be triggered by an opportunity.

{¶ 26} Dover’s Second Assignment of Error is overruled.

VI. The Trial Court Did Not Err by Overruling

Dover’s Request for a Jury Instruction on Theft

{¶ 27} Dover’s Third Assignment of Error is as follows:

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

ELEMENTS OF THE LESSER INCLUDED OFFENSE OF PETTY THEFT

CONSTITUTED PLAIN ERROR.

{¶ 28} Dover’s argument in support of this assignment of error is addressed generally to

Theft, in violation of R.C. 2913.02. Petty Theft is defined as the theft of property or services of

a value of less than $1,000, and there is nothing in the record to suggest that the contents of 11

Dixon’s purse, which included a cash withdrawal of approximately $1,450 in paper currency and

another $250 that Dixon already had in her purse, was less than $1,000. We will, therefore,

analyze this assignment of error as relating to the trial court’s failure to have instructed the jury

on Theft, in violation of R.C. 2913.02(A), (B)(2), a felony of the fifth degree.

{¶ 29} Curiously, Dover presents this assignment in terms of plain error, indicating that

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

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

after the trial court had instructed the jury. Therefore, we will analyze this assignment of error

under conventional error standards, not the heightened standard required to find plain error.

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

colloquy:

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

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

be heard on that issue?

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

including lesser included offense of theft?

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

trying to determine whether or not that’s been asked on any other instruction,

other than that.

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

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

threatened at gun point, threatened, and her purse was stolen by her [sic] by the 12

participants and that accomplice Becraft that she described as taking her purse.

She identified Mr. Dover as the individual who pointed the gun at her, made a

threat against her life, simultaneously, with the purse being snatched. At best, my

point being, I don’t understand what justification there would be a lesser include

[sic] of theft in that the Defendant participated in the way that Ms. Dixon

described or he did not. I don’t know if there is any evidence before the jury that

it wasn’t.

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

regarding cause?

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

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

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

intimidation.

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

testified that he was holding a gun to her back.

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

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

should be left with either aggravated robbery or nothing.

MR. KINSLER: May I?

THE COURT: Yes.

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

there was a firearm, but believes the Defendant made the threat to Ms. Dixon 13

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

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

My point being, Your Honor, if the Court was going to consider a lesser included,

I think it would be the A-2 sub-section, robbery, rather than theft.

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

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

instruction as indicted [sic].

MR. GRIFFIN: Thank you, Your Honor.

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

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

Dover responded:

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

regarding the jury charge?

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

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

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

above-quoted reference to relate back to that request. Dover never requested a jury instruction

on the lesser-included offense of Robbery, despite the State’s having indicated that he might well

be entitled to that instruction. This may well have been trial strategy, Dover having decided that

he did not want to take a chance that the jury would find him guilty of Robbery if it did not find

the State to have proven all of the elements of Aggravated Robbery beyond reasonable doubt.

{¶ 33} An instruction on a lesser-included offense should only be given where the 14

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

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

with the choice of reaching an unreasonable conclusion.” State v. Johnson,

,

(1988). In the case before us, based on the evidence in the record, to have

instructed the jury on Theft would have given them the choice of reaching an unreasonable

conclusion. The jury might reasonably have concluded that no firearm was involved, in which

event they might have found Dover not guilty of Aggravated Robbery, but in our view there is no

reasonable view of the evidence from which the jury could have found Dover guilty of Theft, but

not guilty of Robbery. The only three outcomes reasonably supported by the evidence were: (1)

a conviction for Aggravated Robbery, if the jury concluded that Dover put a gun to Dixon’s back

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

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

or (3) an acquittal of either charge, if the jury decided not to credit the State’s evidence.

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

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

physical harm, which would have made the offense Robbery under R.C. 2911.02(A)(2). The

only evidence in the record that arguably could have supported this result was a statement made

during Dover’s interrogation by the detective investigating the robbery. That statement was that

Dover had a conversation with Dixon while Becraft snatched Dixon’s purse. For the jury to

have concluded that the conversation Dover had with Dixon consisted of nothing more than a

distraction to enable Becraft to seize the purse, would have required the jury to speculate

concerning the contents of that conversation. Dover did not say anything regarding the nature of 15

that conversation; therefore, the only characterization of that conversation in the record is

Dixon’s testimony that Dover told her he would kill her if she did not give up her purse. We

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

instruction for Theft.

{¶ 35} Dover’s Third Assignment of Error is overruled.

VII. Conclusion

{¶ 36} All of Dover’s assignments of error having been overruled, the judgment of the

trial court is Affirmed.

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DONOVAN and HALL, JJ., concur.

Copies mailed to:

Lisa M. Fannin Brian A. Smith Hon. Richard J. O’Neill

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