Court of Appeals of Ohio, Second District, Montgomery County.
STATE of Ohio, Plaintiff-Appellee,
v.
Ronnie LEAVELL, Defendant-Appellant.
No. 10919.

April 7, 1989.
 Lee C. Falke, Prosecuting Attorney for Montgomery County, Ted Millspaugh, Assistant Prosecuting Attorney, Dayton, for plaintiff-appellee.

 Karen S. Williams, Carrollton, for defendant-appellant.

OPINION
 
 FAIN, Judge.

 *1 Defendant-appellant Ronnie Leavell appeals from his conviction and sentence for robbery.   He contends that the trial court erred by failing to excuse one of the jurors for cause, and by failing to instruct the jury concerning the lesser included offense of Theft by Threat.   Leavell also contends that his counsel was ineffective, and that his conviction was against the manifest weight of the evidence.

 We conclude that there was sufficient evidence in the record to support Leavell's conviction, and that there was no evidence in the record to support an instruction on Theft by Threat.   We also conclude that the record fails to portray ineffective assistance of counsel.

 However, we agree with Leavell that the trial court erred when it overruled Leavell's challenge for cause of one of the jurors who indicated that he was subject to the influence of bias and prejudice.   Accordingly, Leavell's conviction will be reversed, and this cause will be remanded for a new trial.

I
 Leavell concedes that one evening late in 1987, he jumped over the counter at a restaurant known as Ben's Hamburgers, opened the cash register, removed about $54, and was starting to leave when a waitress grabbed his clothes and tried to stop him.

 Leavell's witnesses testified that he merely pulled away from the waitress and made his escape with the money.   The waitress testified that he both threatened and applied physical force against her person in making good his escape.

 Leavell was charged with Robbery, and tried by a jury.   During the voir dire of the jury, one witness, in response to a question from Leavell's counsel, acknowledged that his wife had been a waitress at one point.   The following colloquy ensued:

 MR. COX:  Because what this particular case would involve is a question of a robbery at a restaurant involving a waitress.   Your wife being a former waitress, would that give you any difficulty in this case in being fair and objective?

 MR. WYANDT [The prospective juror]:  I would have to say probably yes.

 MR. COX:  That's the reason I asked that question.   When your wife worked as a waitress was she ever involved whereby she was robbed or the place was robbed while she was working?

 MR. WYANDT:  No.

 MR. COX:  Could you tell the court why that might, your wife being a waitress in the past, you wouldn't be able to be fair and impartial?   Do you have a preconceived idea?

 MR. WYANDT:  Just when you brought it up it flashed through my mind of knowing her in a restaurant situation what would I think if something happened and it didn't settle well.

 MR. COX:  Knowing that you have thought about it, that's the reason I ask that question to provoke thought.   Like Mr. Divine told you, what we are trying to do, Ronnie Leavell, my client sitting next to me, is charged with the offense of robbery.   Without getting into the point of it concerning a restaurant, the reason I asked that question was to try to provoke any thoughts in your mind whereby you would not be fair and open.   As Mr. Divine said, what we are trying to do is to find twelve people,--he's doing it on behalf of the State of Ohio and I on behalf of Ronald Leavell.   Just like the Judge called it to your attention and everyone's attention when we first started out, we are trying to get people who are not going to have preconceived ideas, who can be fair and impartial and listen to the case.   We're all the subjects of our backgrounds. Sometimes we see things on tv.;   and that's the reason I asked the question, to have you think about it.   Do you think you could give Ronnie Leavell and [sic] fair trial?

 *2 MR. WYANDT:  I don't think I could.   I wouldn't want to be put in a position of having that shadow in the background, saying what if given the background * * *

 MR. COX:  I appreciate your honesty.   A lot of people hold things back.  What we are trying to do is if there's a reason, if you were charged, or a member of your family were charged with a crime would you want a person like you sitting, if a member of your family was charged for example with a robbery involving a store, or a waitress, knowing the way you feel do you feel you wouldn't want a person like yourself standing in judgment because of not being able to give Mr. Leavell a fair trial.   Do you understand?

 MR. WYANDT:  No, I wouldn't want someone with the experience like that.   I think there's a possibility of a bias because of that I would think * * * that would bother me.

 MR. COX:  You don't feel you could give Mr. Leavell a fair trial because of your bias, your wife being a waitress?

 MR. WYANDT:  No, I don't.

 MR. COX:  I would request that this juror be excused.

 THE COURT:  Mr. Wyandt, do you understand everyone comes to court with different experiences and everyone is required to put those things behind them as best they can.   What we are looking for is someone, people who will be fair and impartial looking just at the facts here, putting them behind them whatever has happened before, and listen just to the facts.   Are you saying now that you feel you can't in fact do that in this case, that you can't participate, that you can't put your hostilities behind you and be fair and impartial?

 MR. WYANDT:  That's a tough question.

 THE COURT:  Why don't you think you could?

 MR. WYANDT:  I would like to think I could.

 THE COURT:  Think about it and we will come back to you.   I won't make a ruling.   Continue on with the others.

 Thereafter, prospective juror Wyandt acknowledged that he had friends who were in law enforcement, but he indicated that that would not present any problem.

 Later during the voir dire, the trial court took up the question of prospective juror Wyandt's bias and prejudice again, and the following colloquy ensued:

 THE COURT:  Mr. Wyandt, you have had some time to think now.   Again, I come back to the question that Mr. Cox asked you.   Based upon the fact that your wife worked as a waitress, do you feel that you could be fair and impartial in this case, consider the evidence presented in this courtroom, the law I instruct you on and put that behind you?   If you can't be honest with us.   Do you think that would cause a problem for you or do you think you could be fair and impartial?

 MR. WYANDT:  After thinking about it I don't want to shirk my duty because I have always followed the system;  and it was a long time ago.   I think I can set it aside and be impartial.

 THE COURT:  You feel confident with the fact you can put anything, any problem it might cause, you can put that behind you and make a decision based on the evidence and the law, and nothing else?

 *3 MR. WYANDT:  I think I can, yes.

 THE COURT:  Gentlemen, approach for a second.

 (Thereupon followed an off-the-record discussion between the court and counsel.)

 (Elipsis marks in original.)

 Although the trial court's denial of Leavell's counsel's request that prospective juror Wyandt be excused for cause is not expressly in the record, it does not appear in the record that Mr. Wyandt was excused, and the State does not dispute that Leavell's motion to excuse prospective juror Wyandt for cause was overruled.

 Thereafter, Leavell used all four of his peremptory challenges to excuse other members of the jury.

 Following the trial, Leavell was convicted of robbery and sentenced accordingly.   From his conviction and sentence, Leavell appeals.

II
 Leavell's First Assignment of Error is as follows:

 IT WAS PREJUDICIAL ERROR AND AN ABUSE OF DISCRETION FOR THE TRIAL COURT TO FAIL TO GRANT A DEFENSE MOTION TO EXCUSE A JUROR FOR CAUSE AFTER SAID JUROR HAD STATED FIVE TIMES THAT HE WAS BIASED AGAINST DEFENDANT.   THE TRIAL COURT'S FAILURE TO EXCUSE SAID JUROR FOR CAUSE WAS A VIOLATION OF DEFENDANT'S RIGHT TO A TRIAL BY AN IMPARTIAL JURY UNDER OHIO CONSTITUTION I, SECTION 10 AND UNITED STATES CONSTITUTION, AMENDMENTS SIX AND FOURTEEN.

 Under similar circumstances, we have held that it is error for a trial judge, after a prospective juror has indicated that he or she is probably biased and prejudiced to the extent of being unable to give a criminal defendant a fair trial, to fail to excuse that juror based upon the judge's rehabilitation of the prospective juror through the use of leading questions that imply that the juror should say that he will try to put aside his bias and prejudice, and that any other response from the prospective juror would not be reasonable. State v. Rowe (June 1, 1988), Clark App. No. 2393, unreported.

 Trial judges often, wittingly or unwittingly, exert considerable influence upon jurors, who, due to the nature of their role in the courtroom, can be expected to pick up their cues from the trial judge concerning how they should behave.   Trial judges may certainly conduct voir dire;  a trial judge may interrogate a prospective juror in order better to ascertain whether he is actually biased and prejudiced, and the trial judge may clear up any misconceptions that the prospective juror may have concerning his role and duties as a juror.   However, a trial judge must be careful not to cross the fine line between:  (i) a trial judge's voir dire that merely explores what the prospective juror is really saying about his inability or ability to try the issues fairly and impartially, or that clears up any misconception that the prospective juror may have as to his proper role and duties, on the one hand; and, on the other hand, (ii) a voir dire by the trial judge that communicates to the prospective juror that what the judge wants and expects the prospective juror to say is that he will put aside any bias and prejudice, and try the issues fairly and impartially.   Because of the pervasive influence that a trial judge can ordinarily be expected to have on the behavior of jurors, as the expert, neutral embodiment of justice in an adversary process with which the juror ordinarily will be unfamiliar, the latter kind of voir dire by a trial judge is not sufficient to rehabilitate a prospective juror who has already undermined confidence in his ability to try the issues fairly and impartially, to the extent that he should be excused for cause.

 *4 In State v. Rowe, supra, we held that the failure to excuse a prospective juror under those circumstances was prejudicial per se, even though the juror was, in fact, removed from the jury by means of a peremptory challenge, since that unfairly forced the defendant to use up one of his peremptory challenges.   In light of Ross v. Oklahoma (1988), 108 S.Ct. 2273, that holding is suspect, at least where the defendant has not indicated that he would have exercised an additional peremptory challenge had he not been forced to use it to remove the juror who should have been removed for cause.

 In the case before us, however, the problem presented in Ross v. Oklahoma, supra, does not arise, since, as a result of Leavell having used all of his peremptory challenges to remove other jurors, he was, in fact, tried by a jury that included the juror who should have been excused for cause.

 Although the evidence offered against Leavell was strong, he did present three witnesses who testified that he did not either threaten or apply force directed against the waitress to make good his escape, and consummate the theft. Accordingly, we cannot say that the evidence against Leavell was so overwhelming as to render harmless the error in failing to excuse a juror who should have been excused for cause as having indicated a degree of bias and prejudice sufficient to undermine confidence in his ability fairly and impartially to try the issue of Leavell's guilt.

 Leavell's First Assignment of Error is sustained.

III
 Leavell's Second Assignment of Error is as follows:

 IT WAS PREJUDICIAL ERROR FOR THE TRIAL COURT TO GIVE AN INCOMPLETE INSTRUCTION ON THE LESSER INCLUDED OFFENSE OF THEFT.

 Leavell argues that the jury should have been instructed on the offense of Theft by Threat as a lesser included offense of Robbery.   The elements of Theft by Threat are set out in R.C. 2913.02(A)(4), as follows:

 No person, with purpose to deprive the owner of property or services shall knowingly obtain or exert control over either the property or services, in any of the following ways:

  * * *
 (4) By threat.

 The elements of robbery are set forth in R.C. 2911.02(A), as follows:

 No person, in attempting or committing a theft offense, as defined in  section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall use or threaten the immediate use of force against another.

 Even though an offense may be statutorily defined as a lesser included offense of another offense, a charge on the lesser included offense is required only where the evidence presented at trial would reasonably support both an acquittal of the crime charged and a conviction upon the lesser included offense.  State v. Thomas (1988), 40 Ohio St.3d 213, second paragraph of syllabus.

 In the case before us, the only evidence of any threat made by Leavell during the commission of the theft offense was evidence that Leavell threatened to strike the waitress with his fists when she attempted to restrain him.   If believed, this was evidence of a threat of the immediate use of force against another made in the course of fleeing immediately after a theft offense.   As such, it would be inconsistent with an acquittal of the greater charge of Robbery, since it would be sufficient, in conjunction with the admitted theft of the money, to sustain a conviction for Robbery.

 *5 The evidence in this case simply did not warrant the giving of an instruction on the lesser included offense of Theft by Threat.

 As Leavell notes in his brief, his attorney did not request an instruction on Theft by Threat.   Even if he had, the trial court would not have been required to give such an instruction.

 Leavell's Second Assignment of Error is overruled.

IV
 Leavell's Third Assignment of Error is as follows:

 THE CONVICTION OF THE DEFENDANT HEREIN SHOULD BE REVERSED BECAUSE OF INEFFECTIVE ASSISTANCE OF COUNSEL.

A
 Leavell first contends that his trial counsel's performance was deficient in that his trial counsel failed to make a record of either the overruling of the motion to exclude prospective juror Wyandt, or Leavell's objection to that ruling.   As noted in Part II of this opinion, we are satisfied that the record portrays that Leavell challenged prospective juror's Wyandt for cause and that the trial court overruled Leavell's challenge.   Accordingly, the record does not show any deficiency in the performance of Leavell's attorney in this respect.

B
 Leavell next contends that his trial counsel should have requested the giving of an instruction on the lesser included offense of Theft by Threat.   For the reasons noted in Part III of this opinion, we conclude that the evidence in the record would not have required the giving of such an instruction, even if Leavell's trial counsel had made such a motion.   Therefore, the failure of Leavell's trial counsel to request the giving of an instruction on the lesser included offense of Theft by Threat did not constitute ineffective assistance of counsel.

C
 Leavell next contends that his trial counsel should have sought to establish evidence to support his plea of not guilty by reason of insanity.   There is no basis in the record for concluding that evidence to support Leavell's insanity plea would have been forthcoming had Leavell's trial counsel made an effort to establish such evidence.   This claim necessarily involves the consideration of matters that are outside the record.   Therefore, this claim cannot be sustained in a direct appeal.

 Leavell's Third Assignment of Error is overruled, without prejudice to any claim of ineffective assistance of counsel that he may wish to make in connection with a petition for post-conviction relief, should he be convicted, based upon the claim that his trial counsel failed to pursue a defense of insanity.

V
 Leavell's Fourth Assignment of Error is as follows:

 THE VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

 A conviction cannot be reversed as being against the manifest weight of the evidence if there is testimony in the record that, if believed, would persuade an average mind of the defendant's guilt beyond a reasonable doubt.  State v. Walker (1978), 55 Ohio St.2d 208, 213.

 Leavell concedes that he stole money from the cash register at Ben's Hamburgers.   The waitress at Ben's Hamburgers, Shirley Grant, testified that when she grabbed him to try to stop him from fleeing, he threatened her with his fists and kicked her in her hand and stomach.   This testimony, if believed, was sufficient to persuade an average mind, beyond reasonable doubt, of Leavell's guilt of the offense changed.

 *6 Leavell's Fourth Assignment of Error is overruled.

V
 Leavell's First Assignment of Error having been sustained, the judgment of the trial court will be reversed, and this cause will be remanded for a new trial.

 BROGAN and GRADY, JJ., concur.

 Not Reported in N.E.2d, 1989 WL 33104 (Ohio App. 2 Dist.)

END OF DOCUMENT