Franklin County Criminal Law Casebook
Reproduced with permission from
Allen V. Adair and the Franklin County Public Defender Office
Also see Jury
Matters; Lesser-Included Offenses.
Degree of the offense
Criminal Rule 31 -- Verdict.
R.C. 2945.77 -- Polling jury.
State v. Davis,
116 Ohio St. 3d 404,
2008-Ohio-2, ¶ -- "Jurors need not agree on a single means for committing an
offense." Instruction failed to state that the jury must unanimously agree an
aggravated murder was based on the same predicate offense.
Black v. United States
(2010), 130 S.Ct. 2963 – In a honest services prosecution the
government relied on conduct Skilling v. United States holds is
no longer within reach under 18 U.S.C. ¶1386, as well as conduct
that was. In response to a defense objection based on the reach
of the charging statute the government had sought use of special
verdict forms to record the basis for jury verdicts. The defense
objected and only a general verdict of guilty was returned.
According to Yates v. United States (1957), 354 U.S.
298, a general verdict may be set aside when it is impossible to
tell whether it is based on a valid or invalid theory of
culpability. This applies here. The federal Rules of Criminal
Procedure are silent as to submission of special questions to
the jury. The defense timely objected to the instruction on the
now invalidated theory of culpability, and prevailed keeping the
jury from making further findings.
State v. Skatzes, 104 Ohio St. 3d 195,
2004-Ohio-6391, ¶53-56 -- In a kidnapping prosecution it is not plain error that
the court failed to instruct the jury they must unanimously agree as to which
among alternative purposes the offense was committed, provided they are
unanimous as to guilt. The alternative purposes are equally blameworthy.
Schad v. Arizona (1991), 501 U.S. 624, followed. From later in the
opinion it appears that a general unanimity instruction was given. Also see
State v. Johnson, 104 Ohio St. 3d 210,
State v. Davis, Clark App. No,
2003-Ohio-4839, ¶ 35-62 -- Jurors signed a guilty verdict form that
was phrased in a manner inconsistent with the instructions, the issues in the
case, and the form read during the charge. It was error to reconvene the jury to
further deliberate, then sign a corrected form. A trial court cannot allow a
jury to alter its verdict once it has been discharged and has separated. The
error is structural and prejudice is presumed.
State v. DeMastry, 155 Ohio App. 3d 110,
2003-Ohio-5588, ¶ 71-75 -- No error in the use of a fill in the blanks format
single verdict form covering fifty counts.
State v. Leonard, 104 Ohio St. 3d 54,
2004-Ohio-6235, ¶124-128 -- An attempted rape verdict form mistakenly cited the
number of the GSI statute. The situation was appropriately remedied by
providing the jury a corrected form, along with the other verdict forms
pertaining to that count. The jury had not been excused, since the error
was discovered while the penalty phase of a capital trial was yet to come.
With the agreement of the defense, the corrected forms could be considered after
the jury returned its sentencing verdict.
rel. Martin v. Mannen, 113 Ohio St. 3d 373,
2007-Ohio-2078 -- The requirement within
2938.11(F) that a judge issue a verdict within forty-eight
hours of submission is directory, not mandatory. Inmate tried to
use mandamus to vacate his convictions.
Cleveland v. Walters (1994), 98 Ohio App.
3d 165 -- Jury filled in guilty verdict form, though the immediate verbal
reaction when the verdict was read, and a poll of the jury, indicated they
unanimously meant to find the defendant not guilty. The mistrial declared by the
judge was not a matter of manifest necessity. Appeals court enters judgment of
State v. Brown (1953), 110 Ohio App. 57 --
Headnote: "A juror may, after coming into court, change his vote and so express
himself when a poll of the jury is taken. It is essential in the poll of a jury
in a criminal case that there be no question that an affirmative vote is
recorded. Although it is proper not to allow a juror to explain or give reasons
for his or her vote, it is not wrong for the trial court to interrogate the
juror to make clear such juror's answer, when upon poll, there is doubt as to
the vote being given."
State v. Green (1990), 67 Ohio App. 3d 72,
76-77 -- When juror upon being polled indicated did not concur in verdict, the
court was not required to reinstruct the jury before sending them back to
State v. Lampkin (1996), 116 Ohio App. 3d
771 -- Jury found the defendant guilty of aggravated assault using a form
setting forth some of the language of the charging statute, but omitting mention
of two elements. Reversed as plain error, even though those elements had been
covered in the instructions.
Lorain v. Lozano (1985), 21 Ohio App. 3d
173 -- Court found no error where a civil verdict form was mistakenly used in a
criminal trial and forms had never been offered to counsel for examination.
Mills v. Maryland (1988), 486 U.S. 367 --
Verdict forms in a capital case may not be framed so as to potentially preclude
consideration of mitigating factors.
State v. Dickey (1991), 75 Ohio App. 3d
628 -- Though use of such a form may not be the best practice, it was not a
denial of due process to give the jury a form in which they must fill in the
word "not" ahead of the word guilty in order to acquit. Jury was properly
instructed as to use of form.
State v. Walker (1985), 26 Ohio App. 3d 29
-- When a case is tried to the bench, the court may return a general verdict
without making findings on specific factual issues.
State v. Cordle (January 8, 1985),
Franklin Co. App. No. 84AP-484, unreported (1985 Opinions 29) -- When a minor
misdemeanor is tried to the bench at the same time more serious charges are
tried to the jury, the doctrine of res judicata
bars the judge from convicting the defendant when acquittal by the jury means a
common element has been resolved in the defendant's favor. Also see State v.
Armstrong (July 16, 1991), Franklin Co. App. No. 90AP-690 (1991 Opinions
3262); State v. Capaniro (March 21, 1995), Franklin Co. App. No.
94APC09-1377, unreported (1995 Opinions 1129); Beacon Theaters v. Westover
(1959), 359 U.S. 500.
State v. Reed (1985), 23 Ohio App. 3d 119,
122-123 -- Verdict form in drug trafficking trial failed to specify
classification of drug involved. Since this is an essential element defining the
crime committed the verdict is void.
State v. Tyson (1984), 19 Ohio App. 3d 90
-- Firearm specification requires separate guilty verdict or guilty plea.
State v. Maurer (1984), 15 Ohio St. 3d
239, 248-249 -- Court may refuse to accept tendered jury verdict which fails to
make a finding on death penalty specification.
State v. Fiorenzo (1996), 108 Ohio App. 3d
500, 506-507 -- R.C. 2938.11(F) requirement that findings by a judge or
magistrate be announced within 48 hours is directory, not mandatory. Three week
delay before visiting judge announced verdict in a case tried to the bench was
State v. English (1985), 21 Ohio App. 3d
130 -- Once the jury has been discharged the court may not correct an error in
the form stating the verdict. Compare State v. Davie (1997), 80 Ohio St.
3d 311, 325-326.
State, ex rel. Corrigan, v. White (1976),
46 Ohio St. 2d 29 -- A court is under a clear legal duty to sentence in
accordance with the jury's verdict unless it can show authority to modify that
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of the offense
State v. Moore, 188 Ohio App. 3d 726,
2010-Ohio-1848 – Defendant was charged with F-3 drug possession. Verdict
form only stated he was found guilty as charged in the indictment. When the
verdict form fails to set forth the degree of the offense or an aggravating
factor, the defendant stands convicted only of the lowest degree of the offense.
State v. Pelfrey, 112 Ohio St. 3d 422,
2007-Ohio-256, applied. Court rejects the prosecutor’s waiver argument.
State v. Ligon,
179 Ohio App. 3d 544,
2008-Ohio-6085 – Applying State v. Pelfrey, 112
Ohio St. 3d 422,
2007-Ohio-256 and State v. Sessler, 119 Ohio St.
2008-Ohio-3180, drug case verdict forms did not include findings
establishing a higher degree of the offenses charged. "As charged in the
indictment is not sufficient" even though that recitation is acceptable in
Vitteritto, 173 Ohio App. 3d 532,
2007-Ohio-5478 – Interference with custody is a misdemeanor
unless the children are taken out of state. Verdict forms
referred to the offense as charged in the indictment but did not
provide for the jury to make a further finding on the enhancing
element. Appellant stands convicted only of misdemeanors.
State v. Pelfrey, 112 Ohio St. 3d
State v. Pelfrey,
112 Ohio St. 3d 422,
2007-Ohio-256 -- Syllabus: "Pursuant to the clear language of
R.C. 2945.75, a
verdict form signed by a jury must include either the degree of the offense of
which the defendant is convicted or a statement that an aggravating element has
been found to justify convicting a defendant of a greater degree of a criminal
State v. Lomax, 96 Ohio St. 3d 318,
2002-Ohio-4453 -- Death penalty case was tried to a three judge panel which
found the defendant not guilty of a prior calculation and design count, but
guilty of a felony murder count and a
2929.04(A)(7) specification. The
specification failed to allege the defendant was the principal offender in the
commission of the predicate felony. Since the panel had found the defendant not
guilty of the prior calculation and design count, appellant was not convicted of
a death-eligible offense. Held that the prosecutor was not entitled to appeal
the denial of a post-verdict motion to amend the indictment either as a matter
of right or by leave of court. Doing so amounted to a collateral attack on the
verdict. The trial court's ruling was not a dismissal of all or part of the
indictment. Instead it was a ruling based on the language contained in the
State v. Draughton, Franklin App. No.
2003-Ohio-2727 -- In a rape trial where the verdict form contained a finding on
the age of the victim, the court misread the jury's finding during a poll of the
jury. Recognizing the mistake, the jury was recalled and asked if they had
signed the form. Held that this did not deny the defendant his right to a poll
of the jury. Sargent v. State (1842), 11 Ohio 472 distinguished on the
basis that the verdict form in that case did not address the second count of the
State v. Burrow (2000), 140 Ohio App. 3d
466 -- Verdict form did not specify the degree of the offense or set forth the
element making carrying a concealed weapon a felony instead of a misdemeanor.
Applying R.C. 2945.75(A)(2), defendant could only be sentenced for a
State v. Boykin, Montgomery App. No.
2004-Ohio-1701, ¶127- 136 -- Though the indictment alleged tools were
used in the commission of a felony, this was not included on the verdict form.
Consequently defendant stood convicted of the least degree of the offense.
Also see State v. Woullard, 158 Ohio App. 3d 31,
State v. Thomas (1988), 40 Ohio St. 3d 213
-- Paragraph three of the syllabus: "A jury must unanimously agree that the
defendant is guilty of a particular criminal offense before returning a verdict
of guilty on that offense. If a jury is unable to agree unanimously that a
defendant is guilty of a particular offense, it may proceed to consider a lesser
included offense upon which evidence has been presented. The jury is not
required to determine unanimously that a defendant is not guilty of the crime
charged before it may consider a lesser included offense. (State v.
Muscatello , 57 Ohio App. 2d 231, paragraph three of the syllabus,
State v. Gleason (1996), 110 Ohio App. 3d
240 -- Defendant was convicted of disseminating matter harmful to juveniles, but
verdict did not set forth finding whether the material was obscene or harmful.
Failure to include finding meant defendant was convicted of the least degree of
the offense, being a first degree misdemeanor.
State v. Breaston (1993), 83 Ohio App. 3d
410 -- In a CCW prosecution whether the firearm was loaded or ammunition was
ready at hand was a legitimate issue, submitted to the jury in the instructions,
but the verdict form contained no space for a finding on this issue. As a
result, the defendant stood convicted only of a misdemeanor violation of the
State v. Woods (1982), 8 Ohio App. 3d 56
-- Failure of verdict form to state degree of offense or aggravating
circumstances cured by recitation that defendant is found guilty of offense as
charged in the indictment and showing that indictment was read to the jury.
Compare State v. Griffin (November 4, 1980), Franklin Co. App. No.
80AP-311, unreported (1980 Opinions 3424) reaching the opposite conclusion where
the indictment had not been read to the jury. Also see State v. Parks
(1962), 174 Ohio St. 81; State v. Ridgway (1972), 35 Ohio App. 2d 381.
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Yeager v. United States
(2009), 129 S.Ct. 2360 – That the jury hung on some counts sharing the same
issue does not limit the preclusive force of verdicts of acquittal under the
Double Jeopardy Clause.
State v. Ruppart, 187
Ohio App. 3d 192,
2010-Ohio-1574 – Aggravated assault is an offense of lesser
degree to felonious assault, not a lesser-included offense. The
trial court erred by instructing the jury that if they found the
defendant not guilty of felonious assault they were to further
consider whether he was guilty of aggravated assault. A verdict
was returned finding the defendant not guilty of felonious
assault but guilty of aggravated assault. Reversed as plain
error. The verdict was internally inconsistent. While
inconsistent verdicts on different counts are generally not the
basis for reversal, this reflected different responses within
the same count.
State v. Howard,
Franklin App. No. 06AP-1273,
2007-Ohio-5659 -- Jury was instructed on aggravated menacing and on menacing
as a lesser included offense. Verdict forms were signed finding the defendant
guilty of the greater charge but not guilty of the lesser. Agg. menacing
conviction reversed as this amounts to inconsistent verdicts to a single count.
Court could have directed the jury to deliberate further, but questions directed
to the foreperson could not remedy the situation.
State v. Smith, Seneca App. No. 13-02-11,
2002-Ohio-5095 -- Sheriff and associate were indicted for stalking a dispatcher
who had openly campaigned for an opponent. Associate engaged in an extended
course of nonverbal harassment, and his conviction as a principal was affirmed.
Sheriff was acquitted, but the associate was found guilty of complicity in his
acts. Verdict is inconsistent and conviction of associate for complicity in the
Sheriff's acts would be against the manifest weight of the evidence. Since no
sentence was imposed, remanded for entry of judgment.
State v. Carusone, Hamilton App. No.
2003-Ohio-1018, ¶50 -- "We hold, under the facts of this case, that Carusone could not have been found guilty of both involuntary manslaughter and
reckless homicide. Either Carusone shot Hacker while knowingly menacing Walker,
or he shot Hacker while recklessly brandishing a firearm during an altercation.
The evidence did not reasonably support findings that Carusone acted both
knowingly and recklessly. See State v. Tolbert (July 27, 1994), 1st Dist.
State v. Lett, 160 Ohio App. 3d 46,
2005-Ohio-1308 -- Conviction for having a weapon under a disability is not
inconsistent with acquittal on firearm specifications when there was testimony
that the defendant was seen in possession of another gun.
State v. Adams (1978), 53 Ohio St. 2d 223
-- Paragraph two of the syllabus: "The several counts of an indictment
containing more than one count are not interdependent and an inconsistency in a
verdict does not arise out of inconsistent responses to different counts, but
only arises out of inconsistent responses to the same count. (Browning v.
State, 120 Ohio St. 62, approved and followed.)" Also see State v.
Woodson (1985), 24 Ohio App. 3d 143; Miller v. California (1973), 413
U.S. 15; Dunn v. United States (1932), 284 U.S. 390.
State v. Lovejoy (1997), 79 Ohio St. 3d
440 -- Syllabus: "(1) The several counts of an indictment containing more than
one count are not interdependent and an inconsistency in a verdict does not
arise out of inconsistent responses to different counts, but only arises out of
inconsistent responses to the same count....(2) When a jury finds a defendant
not guilty as to some counts and is hung on other counts, double jeopardy and
collateral estoppel do not apply where the inconsistency in the responses arises
out of inconsistent responses to different counts, not out of inconsistent
responses to the same count."
State v. Washington (1998), 126 Ohio App.
3d 264, 275-277 -- Defendant was convicted of theft in office, but acquitted on
predicate offense. No reversal because verdicts are inconsistent.
State v. Morris (1975), 42 Ohio St. 2d
307, 325 -- There is no requirement that verdicts on the same count of an
indictment be consistent as to codefendants. Also see Cleveland v. Ryan
(1958), 106 Ohio App. 110; Harris v. Rivera
(1981), 454 U.S. 339.
State v. Crosby (1993), 92 Ohio App. 3d
455 -- No error found when at a joint trial three defendants were acquitted by a
jury, while the fourth, having waived jury trial, was found guilty by the judge.
State v. Tanner (1993), 90 Ohio App. 3d
761 -- Guilty verdicts on involuntary manslaughter and aggravated murder arising
from a single homicide are not inconsistent.
State v. Huntley (1986), 30 Ohio App. 3d
29 -- Verdict is invalid where after a joint trial for aggravated burglary the
jury found one codefendant guilty of burglary and the other of breaking and
entering. Consistency was required on the issue whether or not the structure was
State v. Hirsch (1956), 101 Ohio App. 425
-- Headnote 2: "In a criminal action against two or more defendants who are
tried together, and, where there is but one issue to be decided by the jury, and
where one defendant is charged as an aider and abettor, a verdict of guilty as
to such defendant and not guilty as to a codefendant is inconsistent and must be
State v. Boyd (1996), 110 Ohio App. 3d 13
-- Defendant was convicted of aggravated robbery, but acquitted on firearm
specification. No reversal based on inconsistent verdicts. Opinion mistakenly
characterizes firearm specification as a separate offense. Better view would be
that while there may appear to be an internal inconsistency within a single
count, aggravated robbery is premised on the use of a deadly weapon, not limited
State v. Mapes (1985), 19 Ohio St. 3d 108,
112-113 -- Verdicts not subject to reversal though jury found defendant guilty
of aggravated murder in the course of both burglary and robbery but not guilty
of specifications based on those offenses.
United States v. Powell (1984), 469 U.S.
57 -- No reason to vacate conviction when acquittal on predicate offenses cannot
be rationally reconciled with conviction of compound offenses based on same
conduct plus additional acts.
State v. Brown (1984), 12 Ohio St. 3d 147
-- Verdicts were not inconsistent where the jury found the defendant not guilty
by reason of insanity on some counts and guilty of others.
State v. Fields (1992), 84 Ohio App. 3d
423 -- If venue was not proper as to one of three closely related charges, it
was not proper as to the other two.
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