State v. Blalock , 2022 Ohio 2042 ( 2022 )

[Cite as State v. Blalock, 2022-Ohio-2042.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110895
v. :
RONDELL BLALOCK, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: VACATED AND REMANDED
RELEASED AND JOURNALIZED: June 16, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-20-652973-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Gregory M. Paul, Assistant Prosecuting
Attorney, for appellee.
Buckeye Law Office, and P. Andrew Baker, for appellant.
MARY J. BOYLE, J.:
Defendant-appellant Rondell Blalock (“Blalock”) appeals his
convictions arising from the shooting death of Kevin Boyd III (“Boyd”).1 For the
1Because this appeal arises from a procedural error, the substantive facts of
Blalock’s convictions have been omitted.
reasons that follow, we vacate the convictions and remand for a new trial.
In September 2020, the Cuyahoga County Court of Common Pleas,
Juvenile Division, found that Blalock was 17 years old at the time of the offense and,
pursuant to R.C. 2152.12, transferred the case to the Cuyahoga County Court of
Common Pleas, General Division, where Blalock was charged in a four-count
indictment. Counts 1 and 2 charged him with murder. Count 3 charged him with
voluntary manslaughter. Count 4 charged him with felonious assault. Each of these
counts carried both one- and three-year firearm specifications.
On August 9, 2021, Blalock waived his right to a jury and the matter
proceeded to a bench trial. On August 10, 2021, the trial court found Blalock guilty
of all counts and their associated specifications.
On August 24, 2021, Blalock filed a motion to modify the verdict
pursuant to Crim.R. 33(A)(4), arguing that evidence of “provocation” was produced
at trial that would reduce Blalock’s convictions to voluntary manslaughter on
Count 1, involuntary manslaughter on Count 2, and aggravated assault on Count 4.
Three days later, the trial court denied the motion.
On September 8, 2021, the trial court sentenced Blalock to a prison
term of three years on the firearm specification in Count 1 (murder in violation of
R.C.2903.02(A)), to be served consecutively and prior to a term of 15 years to life on
the underlying charge of murder in Count 1. The remaining counts merged into
Count 1.
Blalock now appeals, raising two assignments of error:
Assignment of Error I: The trial court erred when it improperly
convicted defendant-appellant of murder and voluntary manslaughter
for the same homicide.
Assignment of Error II: The trial court erred when it returned guilty
verdicts that were against the manifest weight of the evidence.
Within his first assigned error, Blalock contends that he cannot be
found guilty of both murder and voluntary manslaughter for the same killing.
Blalock maintains that voluntary manslaughter is an inferior offense, not a lesser-
included offense of murder, and if the trier of fact found sufficient provocation to
find him guilty of voluntary manslaughter, then he cannot also be found guilty of
murder. Blalock argues that he is entitled to a new trial because the guilty verdict
for voluntary manslaughter undermines his convictions. The state contends that
Blalock appears to be arguing that the trial court reached inconsistent verdicts,
which does not constitute reversible error.
We note at the outset that there was no objection to the trial court’s
verdicts. When a party fails to object to a defect in the trial proceedings, that party
waives all but plain error on appeal. State v. Owens, 162 Ohio St.3d 596, 2020-
Ohio-4616, 166 N.E.3d 1142, ¶ 7, citing State v. Diar, 120 Ohio St.3d 460, 2008-
Ohio-6266, 900 N.E.2d 565. Under Crim.R. 52(B), “[p]lain errors or defects
affecting substantial rights may be noticed although they were not brought to the
attention of the court.” Plain error does not occur “unless, but for the error, the
outcome of the trial clearly would have been otherwise.” State v. Long, 53 Ohio
St.2d 91, 97, 372 N.E.2d 804 (1978), paragraph two of the syllabus. “To prevail
under the plain error standard, the substantial rights of the accused must be so
adversely affected that the error undermines the fairness of the guilt determining
process.” State v. Wright, 8th Dist. Cuyahoga No. 93068, 2011-Ohio-3575, ¶ 25.
Here, we find that the trial court’s inconsistent verdicts are plain error because they
clearly affected the trial’s outcome.
The Ohio Supreme Court has distinguished inferior-degree offenses
from lesser-included offenses. “An offense is an ‘inferior degree’ of the indicted
offense where its elements are identical to or contained within the indicted offense,
except for one or more additional mitigating elements.” State v. Deem, 40 Ohio
St.3d 205, 533 N.E.2d 294 (1988), paragraph two of the syllabus. An offense may
be a “lesser included” offense “if (i) the offense carries a lesser penalty than the
other; (ii) the greater offense cannot, as statutorily defined, ever be committed
without the lesser offense, as statutorily defined, also being committed; and (iii)
some element of the greater offense is not required to prove the commission of the
lesser offense.” Id. at paragraph three of the syllabus, citing State v. Kidder, 32 Ohio
St.3d 279, 513 N.E.2d 311 (1987).
R.C. 2903.02(A), Ohio’s murder statute, provides that “[n]o person
shall purposely cause the death of another[.]” R.C. 2903.03(A), Ohio’s voluntary
manslaughter statute, provides that “[n]o person, while under the influence of
sudden passion or in a sudden fit of rage, either of which is brought on by serious
provocation occasioned by the victim that is reasonably sufficient to incite the
person into using deadly force, shall knowingly cause the death of another.” Under
the voluntary manslaughter statute, the trier of fact
must find a defendant guilty of voluntary manslaughter rather than
murder if the prosecution has proven, beyond a reasonable doubt, that
the defendant knowingly caused the victim’s death, and if the
defendant has established by a preponderance of the evidence the
existence of one or both of the mitigating circumstances.
(Emphasis added.) State v. Rhodes, 63 Ohio St.3d 613, 617, 590 N.E.2d 261 (1992).
The Ohio Supreme Court has defined voluntary manslaughter as “an inferior degree
of murder” because the elements of voluntary manslaughter are contained in the
offense of murder, except for the addition of mitigating elements. Id., citing State
v. Tyler, 50 Ohio St.3d 24, 36, 553 N.E.2d 576 (1990); State v. Shane, 63 Ohio St.3d
630, 632, 590 N.E.2d 272 (1992).
Consistent with the Ohio Supreme Court’s definition of voluntary
manslaughter, “‘a person cannot be convicted of both murder and voluntary
manslaughter for the same killing.’” State v. Griffin, 175 Ohio App.3d 325, 2008-
Ohio-702, 886 N.E.2d 921, ¶ 12 (1st Dist.), quoting State v. Duncan, 154 Ohio
App.3d 254, 2003-Ohio-4695, 796 N.E.2d 1006, ¶ 24 (1st Dist.). In Duncan, the
defendant was charged with and found guilty of murder, felony murder, and
voluntary manslaughter. The state conceded that the trial court had erred in
simultaneously finding the defendant guilty of murder and voluntary manslaughter.
Id. at ¶ 1. The First District held that these inconsistent verdicts constituted
reversible error and remanded the matter for a new trial. Id. at ¶ 2, 78. The court
reasoned that if the jury “found that the mitigating circumstance of provocation
existed [to warrant a guilty verdict on the inferior offense of voluntary
manslaughter], the jury should not have found [the defendant] guilty of murder.”
Id. at ¶ 1-2, 30.
The Duncan court attributed the error to faulty jury instructions,
which stated that each charge in the indictment constituted a “separate and distinct
matter” on which the defendant may be found guilty or not guilty. Id. at ¶ 28. The
court noted that a proper instruction would have informed the jury that the
defendant “could be convicted either of murder or voluntary manslaughter,” and
cited the Ohio Jury Instructions, which recommend that “a jury be told that if it finds
a defendant has committed murder, but also finds that the defendant acted while
under the influence of sudden passion or in a sudden fit of rage provoked by the
victim, ‘then you must find the defendant not guilty of murder and guilty of
voluntary manslaughter.’” Id. at ¶ 29, quoting 4 Ohio Jury Instructions, CR Section
503.02 (2002).
As explained in Duncan, guilty verdicts for murder and voluntary
manslaughter are incompatible when they concern the same killing. This court has
followed Duncan in recognizing that “when the trier of fact considers the inferior
offense of voluntary manslaughter, the law requires the trier of fact to determine
whether the defendant was guilty of either murder or voluntary manslaughter.”
State v. Amey, 2018-Ohio-4207, 120 N.E.3d 503, ¶ 12 (8th Dist.), citing Griffin at
¶ 12. “[I]f the trier of fact determines that the defendant is guilty of voluntary
manslaughter, it must enter a verdict of not guilty on any murder charges.” Id.Here, the trial court’s finding Blalock guilty of voluntary
manslaughter is clearly incompatible with its finding him guilty of murder. Once
the trial court determined, pursuant to R.C. 2903.03(A), that provocation and the
attendant mitigating circumstances were present to find Blalock guilty of voluntary
manslaughter, a murder verdict was no longer available.
The state argues that Duncan, 154 Ohio App.3d 254, 2003-Ohio-
4695, 796 N.E.2d 1006, is distinguishable because it involved jury instructions, not
a bench trial. However, this court has consistently rejected the argument that
inconsistent verdicts from a bench trial should be distinguished from those resulting
from a jury trial. State v. Frierson, 2018-Ohio-391, 105 N.E.3d 583 (8th Dist.), ¶ 47;
State v. Burke, 8th Dist. Cuyahoga No. 54047, 1988 Ohio App. LEXIS 2442, 5 (June
16, 1988).
The state also argues that “‘inconsistent verdicts on different counts
of a multi-count indictment do not justify overturning a verdict * * *.’” State v.
Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 138, quoting State
v. Hicks, 43 Ohio St.3d 72, 78, 538 N.E.2d 1030 (1989). The state relies in part on
our holding in Frierson, that
“[a]n appellate court is not permitted to speculate about the reason for
the inconsistency when it determines the validity of a verdict.” State v.
Wingfield, 2014-Ohio-2053, 11 N.E.3d 732, ¶ 31 (8th Dist.). Further,
“[c]onsistency between verdicts on several counts of a criminal
indictment is unnecessary[.]” State v. Eason, 8th Dist. Cuyahoga No.
103575, 2016-Ohio-5516, ¶ 68, 69 N.E.3d 1202. “[A]n 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.” State v. Lovejoy, 79 Ohio St. 3d 440, 1997-Ohio-371, 683
N.E.2d 1112 (1997), citing [Hicks]. “This is so because the several
counts of an indictment are independent, and a verdict responding to a
designated count will be construed in the light of the count designated,
and no other.” State v. Brown, 8th Dist. Cuyahoga No. 89754, 2008-
Ohio-1722, ¶ 29. “Inconsistent verdicts often reflect a factfinder’s
attempt to avoid redundancy or to grant leniency” and “may work
against the government as well as the defendant[.]” Id., citing United
States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984);
Lovejoy at 444. “A defendant who benefits from a compassionate
acquittal on one charge cannot fairly complain that it is inconsistent
with his proper conviction on another.” Wingfield at ¶ 31, citing
Powell. Accordingly, a defendant’s conviction will stand “irrespective
of its rational incompatibility with the acquittal.” Eason at ¶ 68, citing
State v. Woodson, 24 Ohio App.3d 143, 493 N.E.2d 1018 (10th
Dist.1985).
Id. at ¶ 45. The cases on which the state relies, however, differ according to the
nature of the inconsistency. Generally, such inconsistencies are traceable to the
defendant’s conviction on some counts and acquittal on other counts. See, e.g.,
Brown at ¶ 27 (“where the defendant is convicted on one or some counts and
acquitted on others, the conviction will generally be upheld, irrespective of its
rational incompatibility with the acquittal”). Such inconsistencies are also generally
motivated by a desire to avoid redundancy or grant leniency. See Burke at 5, citing
Powell at 64-66.
Here, however, Blalock was not acquitted of any counts. Rather, he
was found guilty of incompatible counts for the same conduct, rendering the charges
and verdicts redundant. In addition, a finding of provocation necessary to reduce
Blalock’s conviction from murder to voluntary manslaughter makes Blalock’s
murder conviction more severe. As an inferior-degree offense of murder, voluntary
manslaughter and murder are interdependent. Given this interdependence, the
general rule that inconsistent verdicts on different counts of a multi-count
indictment is no basis for reversal does not apply to the facts of this case.
The state also argues that if the voluntary manslaughter count merged
with the murder count before sentencing, Blalock was only convicted of murder, not
voluntary manslaughter. To support this argument, the state relies on Gapen that
“[a] ‘conviction’ consists of a guilty verdict and the imposition of a sentence or
penalty.” Id. at ¶ 135. The state maintains that after guilty verdicts on different
counts merge into a single conviction, the defendant cannot challenge a merged
verdict because the verdict does not constitute a conviction. See State v. Banks, 8th
Dist. Cuyahoga No. 108166, 2020-Ohio-3029, ¶ 23, quoting State v. Worley, 8th
Dist. Cuyahoga No. 103105, 2016-Ohio-2722, ¶ 23 (A defendant cannot challenge a
conviction that was merged because “‘[t]he counts that merged with the [count of]
conviction are not convictions, and therefore, we cannot individually review the
evidence supporting those findings of guilt.’”)
The state’s reliance on these cases is misplaced. First, the state’s
argument is based on the proposition that a guilty verdict for voluntary
manslaughter disappears when it merges with the murder conviction. See State v.
Ramos, 8th Dist. Cuyahoga No. 103596, 2016-Ohio-7685, ¶ 16-17 (noting that
merger begs the question of what happens to an offense after it merges with the
conviction). Second, the state’s argument assumes that any error in the court’s
finding of voluntary manslaughter must be harmless after it merges with the murder
conviction because it does not change the sentence. See id. at ¶ 15 (any error
regarding the sufficiency or weight of the evidence on merged counts constitutes
harmless error because the final sentence remains unaffected by appellate review of
the merged count). In this case, however, Blalock’s murder conviction does not
erase the court’s finding that Blalock committed voluntary manslaughter, and
Blalock’s murder conviction is not harmless error if a voluntary manslaughter
conviction would have reduced Blalock’s sentence.
Murder and voluntary manslaughter are not just inconsistent
verdicts; each verdict necessarily precludes the other. See Rhodes, 63 Ohio St.3d at
617, 590 N.E.2d 261; Duncan, 154 Ohio App.3d 254, 2003-Ohio-4695, 796 N.E.2d
1006, at ¶ 24; Amey, 2018-Ohio-4207, 120 N.E.3d 503, at ¶ 12. The trial court’s
determination that Blalock was guilty of voluntary manslaughter means that the
trial court found mitigating circumstances to justify reducing Blalock’s conviction
from murder to voluntary manslaughter. The trial court cannot find mitigating
circumstances yet deprive Blalock of the benefit of mitigation by convicting him of
murder, especially when murder carries a greater penalty.
Blalock’s first assignment of error is sustained.
In his second assignment of error, Blalock argues that his convictions
are against the weight of the evidence. The trial court, however, merged the guilty
verdicts on the remaining counts of the indictment with the murder conviction in
Count 1. See Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, at
¶ 135, citing State v. Palmer, 80 Ohio St.3d 543, 572, 687 N.E.2d 685 (1997) (“The
general rule is that a defendant may be charged with multiple counts based on the
same conduct but may be convicted of only one, and the trial court effects the merger
at sentencing.”). Since the guilty verdicts on the remaining counts were merged with
Count 1 and we sustained Blalock’s first assignment of error, Blalock’s second
assignment of error is moot. App.R. 12(A)(1)(c).
Judgment vacated and remanded for a new trial.
It is ordered that appellant recover from appellee costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY J. BOYLE, JUDGE
FRANK DANIEL CELEBREZZE, III, P.J., and
EILEEN T. GALLAGHER, J., CONCUR