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2007-0375. State v. Gardner, Slip Opinion No. 2008-Ohio-2787.
Montgomery App. No. 21357, 2007-Ohio-182. Judgment reversed and cause remanded.
Lundberg Stratton, O'Connor, and Cupp, JJ., concur.
O'Donnell, J., concurs in judgment only.
Moyer, C.J., and Pfeifer and Lanzinger, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2787.pdf
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(June 18, 2008) The Supreme Court of Ohio held today that, in instructing jurors on a charge of aggravated burglary, which requires a finding that the defendant trespassed in an occupied structure “with a purpose to commit ... any criminal offense,” a trial court is not required to identify a specific underlying offense or offenses that the jury must unanimously find the defendant intended to commit in order to return a guilty verdict on the aggravated burglary charge. The Court’s 4-3 majority opinion was authored by Justice Maureen O’Connor.
Reginald Gardner Jr. of Dayton was charged with aggravated burglary, felonious assault and other offenses for forcing his way into a home and assaulting James Pippins following a verbal confrontation between the two outside the home. During the assault, Gardner repeatedly threatened to kill Pippins and Garnder repeatedly asked his co-defendant to give him a gun so that he could shoot Pippins. The state alleged that Gardner and a group of men returned to the victims’ home shortly after the aggravated burglary, entered the home again, and shot at him with a firearm.
In instructing the jury on the findings it must make to return a guilty verdict on the charge of the aggravated burglary, the trial judge recited the language of the aggravated burglary statute, R.C. 2911.11(A)(2), which states that a person is guilty of aggravated burglary if he trespasses by force, stealth or deception in a structure occupied by a person other than an accomplice “with a purpose to commit ... any criminal offense.” The judge did not identify in his instruction on aggravated burglary any specific criminal offense as the underlying “purpose” for Gardner’s illegal entry into the home, however he subsequently instructed the jury on the separate charge of felonious assault and another burglary charge based on Gardner’s course of conduct.
The jury found Gardner guilty of aggravated burglary with a firearm specification, but not guilty of felonious assault and the second burglary. He was sentenced to three years in prison on the aggravated burglary count and an additional three years for the firearm specification, with the sentences to be served consecutively. Gardner appealed, alleging among other assignments of error that the judge’s jury instruction on aggravated burglary had been fatally defective because it allowed jurors to find him guilty of burglary without a unanimous finding that he had entered the house “with a purpose to commit” any specific underlying offense. The 2nd District Court of Appeals upheld Gardner’s claim regarding the jury instruction, vacated his conviction and sentence and remanded the case for a new trial.
The state, represented by the Montgomery County prosecutor’s office, sought and was granted Supreme Court review of the 2nd District’s ruling with regard to the jury instruction.
In today’s decision, the Court reversed the 2nd District, holding that the challenged jury instruction did not constitute plain error sufficient to vacate Gardner’s conviction.
Writing for the majority, Justice O’Connor noted that in an aggravated burglary prosecution the state is required to prove beyond reasonable doubt that the defendant intended to commit “any criminal act.” She found, however, that the underlying criminal act itself is not an element of the aggravated burglary statute and the jury need not be unanimous in its conclusion as to which criminal act the defendant intended to commit. She pointed to two U.S. Supreme Court decisions, Richardson v. United States (1999), and Schad v. Arizona (1991), that she said have established the principle that while jurors must unanimously find that the state has proved all elements of a charged crime, due process does not require that there be uananimity among jury members regarding the means by which the defendant committed an element of that crime.
To illustrate that distinction, Justice O’Connor cited two recent rulings by the Supreme Court of Ohio upholding criminal convictions that were challenged on the basis of an alleged lack of juror unanimity. “(I)n State v. Davis (2008), we recently rejected the appellant’s claim that his right to a unanimous jury verdict on an aggravated-murder charge was violated because the trial court instructed the jury that it could convict only if it found that the appellant committed or attempted to commit kidnapping, aggravated robbery, or aggravated burglary,” she wrote. “We acknowledged that some jurors may have convicted the appellant based on kidnapping while others may have found aggravated robbery or aggravated burglary. We found no error, however, because jurors need not agree on a single means for committing an offense.
“Earlier, we had reached a similar conclusion in State v. Thompson (1987), ... an aggravated-murder case in which the state alleged that the murder had been committed in the course of rape. There, we rejected the appellant’s contention that in order to ensure a unanimous verdict, the trial court was required to instruct the jury that it needed to agree as to whether he had committed a vaginal rape, an anal rape, or both. We found that Ohio’s rape statute required a showing of ‘sexual conduct’ and that both vaginal intercourse and anal intercourse satisfied the statutory definition of ‘sexual conduct.’ We concluded that jurors needed to find only that sexual conduct had occurred in order to find the aggravating circumstance of rape ... ”
Applying that legal reasoning to the burglary statute at issue in the current case, Justice O’Connor concluded that while it is preferable for a trial judge to instruct a jury on one or more specific criminal offenses as the underlying “purpose” of an illegal entry, such an instruction is not mandatory for jurors to find the defendant guilty of burglary if they unanimously agree that he unlawfully entered an occupied premises “with the purpose of committing any criminal offense.”
Because the court of appeals’ ruling on the jury instruction vacated Gardner’s conviction without addressing other assignments of error he raised on appeal, today’s Supreme Court decision remanded the case to the 2nd District for resolution of the remaining issues not previously addressed.
Justice O’Connor’s opinion was joined by Justices Evelyn Lundberg Stratton and Robert R. Cupp. Justice Terrence O’Donnell concurred in judgment only.
Justice Judith Ann Lanzinger entered a dissent, joined by Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer, in which she disputed the majority’s holding that Gardner’s due process right to a unanimous verdict on the aggravated burglary charge was satisfied by the trial court’s jury instruction, and stated that she would affirm the court of appeals’ ruling vacating Gardner’s conviction and granting him a new trial.
“(F)or aggravated burglary the definition of the culpable mental state calls for specific information to be given to the jury, that being the elements of the specific offense that the defendant is alleged to have intended to commit.” wrote Justice Lanzinger. “Jurors must have guidance on whether certain behavior is criminal; that is why we instruct jurors on what the state must prove beyond a reasonable doubt before they may reach a verdict of guilty. Without further instruction on which crime the defendant is alleged to have had the purpose to commit, the jury is left to its own devices and may conceivably convict based upon subjective and incorrect beliefs that certain behavior is a crime, even when it is not.”“The holding in this case should be simple,” Justice Lanzinger wrote “-- that the trial judge must instruct a jury in an aggravated burglary case on the elements of the criminal offense that the defendant is alleged to have had the purpose to commit once inside the premises.”Contacts
R. Lynn Nothstine, 937.225.5757, for
the State of Ohio and Montgomery County prosecutor’s office.
Richard A. Nystrom, 937.223.1011, for Reginald Gardner Jr.