A criminal defendant cannot prevent a trial court from giving instructions to the jury on lesser-included offenses, the Ohio Supreme Court held today.

Trial courts have discretion whether to provide those instructions to juries depending on the evidence presented, Justice Paul E. Pfeifer wrote in the court’s unanimous decision.

Douglas Wine of Auglaize County was indicted for rape based on an allegation made by his mother-in-law. At his jury trial in October 2011, Wine’s mother-in-law testified that she got into bed with one of Wine’s children to tell him a story and fell asleep. She alleged that she awoke to Wine at the side of the bed touching her in a sexual manner.

In two videotaped interviews before he was indicted, Wine stated that he recalled being in bed with his mother-in-law and then offered differing versions of what took place. At trial, Wine testified that he was never in the room with his mother-in-law and did not touch her in any way.

Along with providing instructions to the jury of the elements required to prove rape, the trial court also explained the lesser-included offenses of sexual battery and gross sexual imposition. (A “lesser-included offense” is a lesser crime that contains some of the same elements as a more serious crime.)

The jury found Wine not guilty of either rape or sexual battery, but guilty of gross sexual imposition. He was sentenced to 15 months in prison, fined $5,000, and classified as a Tier I sexual offender.

Wine appealed to Third District Court of Appeals. The appeals court in part determined that the jury instruction on the lesser-included offense of gross sexual imposition was appropriate, but ruled there was insufficient evidence for a conviction on that charge because the element of force was not proven. The court found the evidence supported the offense of sexual imposition, however, and sent the case back to the trial court to correct the conviction and sentence.

Wine appealed the Third District’s decision allowing jury instructions on lesser-included offenses to the Ohio Supreme Court. He argued that he has a right to present an all-or-nothing defense in which the jury must find him guilty or not guilty of only the rape charge and that defendants should be able to control whether a trial court gives jury instructions on lesser-included offenses.

“The law, the evidence presented, and the discretion of the trial judge play a role in whether lesser-included-offense instructions are appropriate,” Justice Pfeifer wrote in today’s opinion. “But the evidence is crucial ….”

He explained that earlier decisions from the Ohio Supreme Court leave no doubt that the quality of the evidence, not the defendant’s trial strategy, guides a court on whether to give instructions to a jury on lesser-included offenses.

“The trial court, after reviewing the evidence, determines whether an instruction on lesser included offenses is appropriate,” Justice Pfeifer wrote. “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.”

2012-1611. State v. Wine, Slip Opinion No. 2014-Ohio-3948.

View oral argument video of this case.

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