Does Error of Not Giving Instruction to the Jury With Regard to Each Count Amount to Plain Error ?
In State v. Doles (Sept. 16, 1991), Ross App. No. 1660, 1991 Ohio App, defendant argued that the trial court instructed the jury pursuant to R.C. 2923.03(D) on one count but committed plain error when it failed to instruct the jury pursuant to R.C. 2923.03(D) on several other counts against him. Id.
Further, defendant argued that he was deprived of effective assistance of counsel when his attorney failed to insist "that the accomplice charge of R.C. 2923.03(D) be given." Id.
In response, the Court held that, even if the court erred in not giving the instruction with regard to each count, the error did not amount to plain error because "the outcome of the trial would not have been any different if the instruction was given." Id.
Further, because any failure to give the instruction was not plain error, defendant's ineffective assistance of counsel claim must also fail. Id.