COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69150, 69151 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION JOSETTE BANKS (69150) : DARRYL BANKS (69151) : : Defendants-Appellants : : : DATE OF ANNOUNCEMENT OF DECISION: JANUARY 30, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-317215 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendants-Appellants: STEPHANIE TUBBS JONES, ESQ. FRANK C. WHALEN, ESQ. Cuyahoga County Prosecutor JOHN A. FRENDEN, ESQ. 1150 Leader Building RANDI OSTRY LeHOTY, ESQ. Cleveland, Ohio 44114 Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendants-appellants Darryl and Josette Banks appeal in these consolidated appeals from their jury convictions for burglary. Defendants were each charged with two counts of aggravated burglary following a dispute with their tenants, who resided in the downstairs unit of their residence, on October 19, 1994. Defendants were charged with using force to trespass into the apartment for the purpose of committing a felony or inflicting, attempting, or threatening to inflict physical harm to their tenant Stephanie Wallace and one of her daughters, Charnese Kelley. The indictments contained various specifications. Defendants pleaded not guilty and the matter proceeded to a lengthy jury trial on April 4, 1995. The prosecution presented testimony from Stephanie Wallace and her seven-year-old daughter Brittany Mays, police officers Norman Saborski, Guy Sako, and Bonnie Rudolph, and EMS technician Reginald Perkins. The prosecution's theory of the case was that defendants forcibly broke open the back door to the residence and violently confronted the occupants. Once inside, Josette Banks had an altercation with Stephanie Wallace and threw a glass pot containing baked beans that had been cooking. The pot broke on the floor and baked beans struck Charnese Kelley, who was not injured. - 3 - The trial court granted defendants' motions for judgment of acquittal in part and dismissed the count against each defendant relating to the two-year-old child, Charnese Kelley. Defendants thereafter presented testimony from Darryl Banks and police Lieutenant James Burke. The defense theory of the case was that the tenants had created problems since they moved in five days before this incident. The Banks had served them with a notice to vacate the premises earlier on the day of the incident because they were too loud and were involved with illegal drugs on the premises. Neither defendant forced their way into the residence, and they did not assault, threaten, attempt to assault or inflict physical harm on Stephanie Wallace or anyone else. The pot of beans merely spilled during the encounter. The trial court submitted the matter to the jury following the parties' closing arguments and delivering its oral and written instructions. The trial court instructed the jury on the charge of aggravated burglary and the lesser included offense of burglary. The jury found defendants guilty of burglary against Stephanie Wallace. The trial court sentenced each defendant to eighteen months imprisonment and imposed fines and court costs, but suspended execution of the imprisonment and most of the fines and placed them on probation. Defendants timely appeal raising the following sole assignment of error: THE TRIAL JUDGE SHOULD HAVE INSTRUCTED THE JURY ON THE LESSER INCLUDED OFFENSE OF CRIMINAL TRESPASS, A MISDEMEANOR. - 4 - We find no reversible error. Defendants argue, for the first time on appeal, that the trial court erred by failing to instruct the jury on the lesser offense of criminal trespass. The record shows defendants never requested the trial court instruct the jury on this offense. Twice during trial, the court discussed the matter of lesser included offenses and instructions with counsel for the parties. At the close of the evidence, the trial court stated that he had required the parties to submit proposed instructions in writing in accordance with Crim.R. 30. Defense counsel did not request the criminal trespass instruction either in writing or orally during the subsequent proceedings. Following the trial court's delivery of its oral and written instructions, moreover, defense counsel did not object to the omission of a criminal trespass instruction. On the contrary, he indicated he was satisfied with the charge. It is well established that the failure to request an instruction on a lesser included offense waives any claim of error absent plain error. State v. Parra (1980), 61 Ohio St.2d 236. The Ohio Supreme Court has repeatedly held that notice of "plain error" under Crim.R. 52(B) is to be taken with utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice. State v. Adams (1980), 62 Ohio St.2d 151. Under this standard, reversal is warranted only when the outcome of the trial clearly would have been different without the error. State v. Bonnell (1991), 61 Ohio St.3d 179. - 5 - This court has applied these principles in an aggravated burglary case involving the omission of a criminal trespass instruction. State v. Nickerson (Aug. 13, 1987), Cuyahoga App. No. 52685, unreported at pp. 2-3. As in Nickerson, defendants have failed to satisfy this strict standard in this case. The trial court discussed lesser included offenses with counsel twice prior to instructing the jury. From the outset, the court stated that it would instruct on the offense of burglary as a lesser included offense of aggravated burglary. The lesser charge of criminal trespass is also a lesser included offense of aggravated burglary. Id.; State v. Scruggs (1980), 18 Ohio Ops.3d 154; State v. Benford (Nov. 22, 1989), Cuyahoga App. No. 56226, unreported at pp. 5-6; State v. Lewis (Nov. 22, 1989), Cuyahoga App. Nos. 56227 and 57494, unreported at pp. 6-7. Despite this authority, defendants did not seek an instruction on criminal trespass. Conceivably, defendants' trial strategy for refusing to request this instruction was to seek acquittal on all charges and not to present the jury with the opportunity to convict them of the lesser charge of criminal trespass. See e.g., State v. King (Nov. 18, 1993), Cuyahoga App. No. 62595, unreported at pp. 5-6. Defendants cannot deliberately refrain from requesting an instruction on a lesser charge during trial and then raise a claim of plain error after the jury finds them guilty of a higher offense beyond a reasonable doubt. Under the circumstances, any inference that the result of the trial would have been different - 6 - if the trial court instructed the jury on criminal trespass is speculative. Accordingly, defendants' sole assignment of error in these consolidated appeals is overruled. Judgments affirmed. - 7 - It is ordered that appellee recover of appellants its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES D. SWEENEY, P.J., and NAHRA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .