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Criminal Law Casebook
Franklin County Criminal Law Casebook
Reproduced with permission from:
David L. Strait
Franklin County Public Defender Office
Criminal Rule 31 -- Verdict.
-- Polling jury.
Degree of the Offense
State v. Davis
, 116 Ohio St. 3d 404,
, ¶ -- "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,
, ¶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, 2002-CA-43,
, ¶ 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,
, ¶ 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,
, ¶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.
State v. rel. Martin v. Mannen
, 113 Ohio St. 3d 373,
-- The requirement within
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 acquittal.
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 deliberate further.
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 --
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 not unreasonable.
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 verdict.
State v. Moore
, 188 Ohio App. 3d 726,
– 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,
, applied. Court rejects the prosecutor’s waiver argument.
State v. Ligon
, 179 Ohio App. 3d 544,
State v. Pelfrey
, 112 Ohio St. 3d 422,
State v. Sessler
, 119 Ohio St. 3d 9,
, 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 judgment entries.
State v. Vitteritto
, 173 Ohio App. 3d 532,
– 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 422,
State v. Pelfrey
, 112 Ohio St. 3d 422,
-- Syllabus: "Pursuant to the clear language of
, 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 offense."
State v. Lomax
, 96 Ohio St. 3d 318,
-- 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
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 indictment.
State v. Draughton
, Franklin App. No. 02AP-895,
-- 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 indictment.
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
, defendant could only be sentenced for a misdemeanor.
State v. Boykin
, Montgomery App. No. 19896,
, ¶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, adopted.)"
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 statute.
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.
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,
– 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,
-- 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,
-- 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. C-010681,
, ¶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. No. C-930129."
State v. Lett
, 160 Ohio App. 3d 46,
-- 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 occupied.
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 set aside."
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 to firearms.
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.
David L. Strait
Copyright © Franklin County Public Defender and David L. Strait, 2015
Contents may not be duplicated without express permission.