State v. Chikhladze, Unpublished Decision (12-18-2002) ( 2002 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.]

JUDGMENT ENTRY. {¶ 1} This appeal is considered on the accelerated calendar under App.R. 11.1(E) and Loc.R. 12, and this Judgment Entry shall not be considered an Opinion of the Court pursuant to S.Ct.R.Rep.Op. 3.

{¶ 2} Following a jury trial, defendant-appellant Kakhaberi Chikhladze was convicted of robbery, in violation of R.C. 2911.02(A)(3). Chikhladze now appeals.

{¶ 3} In a single assignment of error, Chikhladze complains that the trial court failed to properly instruct the jury on the "force" element of robbery. Chikhladze failed to object to the instruction at trial, so he has waived any claim of error.¹ His "failure to object to a jury instruction constitutes a waiver of any claim of error relative thereto, unless, but for the error, the outcome of the trial clearly would have been otherwise."² "Notice of plain error under Crim.R. 52(B) is to be taken with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice."³

{¶ 4} R.C. 2911.02(A)(3) provides that no person, in attempting or committing a theft offense or in fleeing immediately after the attempt or offense, shall use or threaten the immediate use of force against another. In this case, the trial court's instruction on the definition of "force" mirrored the language of R.C. 2901.01(A)(1). We find no plain error with respect to Chikhladze's claim.⁴

{¶ 5} Accordingly, we overrule the assignment of error and affirm the judgment of the trial court.

{¶ 6} Further, a certified copy of this Judgment Entry shall constitute the mandate, which shall be sent to the trial court under App.R. 27. Costs shall be taxed under App.R. 24.

Doan, P.J., Hildebrandt and Winkler, JJ.

¹ See State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, paragraph one of the syllabus.

² State v. Underwood (1983), 3 Ohio St.3d 12, 444 N.E.2d 1332, syllabus.

³ See Long, supra, at 97, 372 N.E.2d 804.

⁴ See, e.g., State v. Dukes (May 25, 1994), 1st Dist. No. C-930637.