State v. Blanton , 2021 Ohio 65 ( 2021 )

[Cite as State v. Blanton, 2021-Ohio-65.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 109294
v. :
EDWARD BLANTON, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 14, 2021
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-636198-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Daniel Cleary, Assistant Prosecuting
Attorney, for appellee.
David L. Doughten, for appellant.
KATHLEEN ANN KEOUGH, P.J.:
Defendant-appellant, Edward Blanton, appeals from the trial court’s
judgment, rendered after a jury verdict, finding him guilty of aggravated robbery
and sentencing him to nine years in prison. Finding no merit to the appeal, we
affirm.
I. Procedural History
Blanton was charged in a four-count indictment as follows: Count 1,
aggravated murder in violation of R.C. 2903.01(A); Count 2, murder in violation of
R.C. 2903.02(B); Count 3, felonious assault in violation of R.C. 2903.11(A)(1); and
Count 4, aggravated robbery in violation of R.C. 2911.01(A)(1). All counts carried
one- and three-year firearm specifications. Count 4, the aggravated robbery charge,
arose out of an incident that occurred on August 6, 2018, at a gas station in
Cleveland; Counts 1, 2, and 3 related to events that occurred the next day.
Blanton pleaded not guilty, and the case proceeded to a jury trial. The
jury found him not guilty of Counts 1, 2, and 3, but guilty of Count 4, aggravated
robbery, and the accompanying firearm specifications. The trial court sentenced
Blanton to six years’ incarceration on the underlying offense, consecutive to three
years on the firearm specifications, for an aggregate sentence of nine years. This
appeal followed.
II. Law and Analysis
A. Jury Instructions
The offense of aggravated robbery is defined in R.C. 2911.01(A)(1),
which states that “[n]o person, in attempting or committing a theft offense * * * or
in fleeing immediately after the offense or attempt shall * * * have a deadly weapon
on or about the offender’s person or under the offender’s control and either display
the weapon, brandish it, indicate that the offender possesses it, or use it[.]” As
apparent from the statute, a theft offense is an essential element of the crime of
aggravated robbery.
“Theft offense” is defined in R.C. 2913.01(K) as including, relevant to
this case, the crime of theft, which is defined in R.C. 2913.02(A) 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:
(1) Without the consent of the owner or person authorized to give
consent;
(2) Beyond the scope of the express or implied consent of the owner or
person authorized to give consent;
(3) By deception;
(4) By threat;
(5) By intimidation.
The trial court gave the following instruction to the jury relative to
Count 4, aggravated robbery:
Before you can find the defendant guilty, you must find beyond a
reasonable doubt, that on or about August 6, 2018, and in Cuyahoga
County, the defendant, Edward Blanton, did in attempting or
committing a theft offense, or in fleeing immediately after the attempt
or offense upon [the victim], did have a deadly weapon, to wit, a
firearm, handgun, on or about his person or under his control, and
either displayed the weapon, brandished it, indicated he possessed it or
used it.
(Tr. 1003.) Although the trial court defined the terms attempt, deadly weapon, and
brandish for the jury, it did not define theft.
In his first assignment of error, Blanton contends that the trial court
failed to properly instruct the jury regarding the offense of aggravated robbery
because it did not define theft for the jury. He asserts that the trial court’s failure to
adequately instruct the jury on all the elements of the offense denied him his
constitutional right to due process, thereby requiring a new trial. Blanton concedes
that he did not object to the charge as required by Crim.R. 30,1 but maintains that
the error was a plain error affecting his substantial rights and, as such, may be
noticed by this court pursuant to Crim.R. 52(B).2
Plain error is an obvious error or defect in the trial court proceedings
that affects a substantial right. State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-
2459, 38 N.E.3d 860, ¶ 22. An alleged error is plain error only if the error is obvious
and it affected the outcome of the trial. Id. We take notice of plain error with the
“utmost caution, under exceptional circumstances, and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus. The burden of demonstrating plain error is on the
party asserting the error. Rogers at id.; State v. McFeeture, 2015-Ohio-1814, 36
N.E.3d 689, ¶ 84 (8th Dist.).
1Crim.R. 30(A) states, in pertinent part, that “[o]n appeal, a party may not assign
as error the giving or the failure to give any instructions unless the party objects before
the jury retires to consider its verdict, stating specifically the matter objected to and the
grounds of the objection.”
2
Crim.R. 52(B) provides that “[p]lain errors or defects affecting substantial rights
may be noticed although they were not brought to the attention of the court.”
We agree with Blanton that the trial court should have given the jury
the statutory definition of theft as part of its instruction regarding aggravated
robbery. Nevertheless, we find no plain error.
‘“As a general rule, a defendant is entitled to have the jury instructed
on all elements that must be proved to establish the crime with which he is charged.’”
State v. Wamsley, 117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 17, quoting
State v. Adams, 62 Ohio St.2d 151, 153, 404 N.E.2d 144 (1980). However, “[t]he
failure to instruct on each element of an offense is not necessarily reversible as plain
error.” Wamsley at id., citing Adams at paragraph two of the syllabus. “Rather, an
appellate court must review the instructions as a whole and the entire record to
determine whether a manifest miscarriage of justice has occurred as a result of the
error in the instructions.” Wamsley at id., citing Adams at paragraph three of the
syllabus.
The Ohio Supreme Court has recognized that “terms of common usage
need not be defined for the jury.” State v. Gross, 97 Ohio St.3d 121, 2002-Ohio-
5524, 776 N.E.2d 1061, ¶ 61, citing State v. Riggins, 35 Ohio App.3d 1, 8, 519 N.E.2d
397 (8th Dist.1986). Thus, if the undefined term is one of common usage and is used
in the jury instruction in that sense, the failure to define the term does not mandate
reversal. State v. Watkins, 10th Dist. Franklin No. 01AP-1376, 2002-Ohio-5080,
¶ 39, citing Riggins at id. Moreover, where there is sufficient evidence upon which
a jury could reasonably conclude that all the elements of the offense have been
proven beyond a reasonable doubt, the failure to define a term is harmless error.
Watkins at id.We find nothing in this case that would mandate reversal due to the
trial court’s failure to define theft for the jury. “Although the term theft is statutorily
defined, it is a term of common usage,” Watkins at ¶ 40, and was used in the jury
instruction in the common sense. The jury apparently understood the term; it did
not request clarification or definition of the term, and Blanton does not explain what
incorrect meanings the jury could have attributed to the term.
There was also sufficient evidence in the record to support the jury’s
finding that Blanton committed aggravated robbery; i.e., theft while armed with a
deadly weapon. State’s exhibit No. 1, a surveillance video from the gas station, sets
forth the events that occurred on August 6, 2018, that formed the basis for the
aggravated robbery charge. It was played repeatedly for the jury during trial. The
video shows the victim, Yuri West, entering the store at the station, and then Blanton
and two codefendants arriving at the station in a vehicle and parking. It shows
Blanton placing a gun in the waistband of his pants as he exits the vehicle, pulling
the gun out of his waistband before he enters the station, and then immediately
pointing the gun in West’s face. The video shows West attempting to push the gun
away, and Blanton’s codefendant Quashaun Moore pushing and then tackling West
to the floor. The video shows Blanton and Moore struggling with West as he is on
the floor, and codefendant Eric Moore kicking him. The video shows Blanton
searching West and removing a firearm from his person, and then handing the gun
to Quashaun as they leave the store. It shows Eric picking up West’s cell phone,
which had fallen to the floor during the altercation, and exiting the store. Finally,
the video shows the three defendants entering their vehicle and driving away. After
they are gone, West can be heard on the video asking where his cell phone is.
At trial, Blanton did not dispute that he forcefully took West’s gun
from him or that he had a firearm on his person and brandished it to facilitate his
taking of West’s gun, as depicted on the video. Indeed, the following colloquy
occurred on the state’s cross-examination of Blanton:
Q. Yuri had no idea you were coming right?
A. No, no.
Q. You surprised him?
A. Correct.
Q. And you took his gun?
A. Yes.
Q. That was his property, right? You took it off of him?
A. He had it.
Q. Right? And you forcefully took it from him, correct?
A. Correct.
Q. You stuck a gun in his face, you used a firearm to facilitate it, help
you do that, correct?
A. Correct.
Q. And Quashaun and Eric were helping you, correct?
A. Correct.
Q. So you forcefully removed his property with the help of a firearm,
correct?
A. Correct.
(Tr. 842-843.)3 Following this exchange, Blanton further admitted that Eric took
West’s cell phone, which had fallen to the floor during Blanton and Quashaun’s
struggle with West. In short, Blanton admitted to all the elements of aggravated
robbery.
In light of the foregoing, we need not take notice of plain error to
prevent a manifest miscarriage of justice. The jury was not hindered in its
deliberations by the trial court’s failure to provide the statutory definition of theft to
the jury as part of its instructions on aggravated robbery, and Blanton has offered
no evidence that the result of the trial would have been different had the trial court
defined the term.
Blanton’s reliance on State v. Woods, 2016-Ohio-661, 47 N.E.3d 894(10th Dist.), to support a finding of plain error in this case is misplaced. In Woods,
the Tenth District found that the trial court’s failure to define the mens rea element
of purpose with respect to the charge of obstructing official business4 was plain error
3Blanton’s defense at trial to the aggravated robbery charge was that he disarmed
West merely as a protective measure, and not to permanently deprive West of his gun,
because West had on multiple occasions previously either robbed him at gunpoint or
threatened him with a weapon.
4 R.C. 2921.31, regarding obstructing official business, states that “[n]o person,
without privilege to do so and with purpose to prevent, obstruct, or delay the performance
by a public official of any authorized act within the public official’s official capacity, shall
do any act that hampers or impedes a public official in the performance of the public
official’s lawful duties.”
that prejudiced the defendant because (1) the mens rea element of purpose is the
essential element of the offense that transforms potentially innocent conduct into a
criminal attempt to thwart the course of justice, and (2) the evidence at trial
demonstrated “considerable ambiguity” about the defendant’s purpose in
approaching the complaining police officer. Id. at ¶ 6, 9.
Woods is not on point. This case does not involve the trial court’s
failure to define a mens rea element, and there is no indication that the court’s
failure to define theft misled the jury to Blanton’s prejudice. Furthermore, the
evidence at trial presented no ambiguity whatsoever about whether Blanton
committed aggravated robbery. The video clearly showed that he had a gun on his
person, and that he brandished the gun while forcibly taking West’s gun from him.
Moreover, Blanton admitted on cross-examination to all the elements of aggravated
robbery.
Accordingly, we find no plain error warranting a reversal. The first
assignment of error is overruled.
B. Removal of Juror for Cause
After the jury had been excused to begin its deliberations, but before
the deliberations began, Juror No. 6 informed the court that she did not want to
deliberate on the case. She said she realized after Blanton’s testimony the day before
that she “probably” knew his girlfriend because they both worked at the main Post
Office in Cleveland, and she did not want any “retaliation.” (Tr. 1031.) She explained
that “during his sentencing she may come and support him, which is
understandable, and lo and behold she would see me, and bad news travels fast at
the Post Office.” Id. She told the court that she “figured [the court] could use one of
the alternates and [she] could just go home.” (Tr. 1032.)
Upon questioning by the prosecutor, Juror No. 6 agreed that she did
not actually know who Blanton’s girlfriend was; she only assumed that she might
know her from the Post Office because they both worked at the same location. (Tr.
1033.) The prosecutor acknowledged that Juror No. 6’s situation was “unpleasant,”
and then asked her if despite that, she could be fair and impartial. (Tr. 1035.) Juror
No. 6 stated, “[t]hat’s not the issue. I definitely can be fair. It’s just she — she
obviously hasn’t showed up during the week, which is surprising. But this may be
the day this person may show up, which is understandable.” (Tr. 1035.) The trial
judge acknowledged that “it would be unpleasant and it would make you
uncomfortable,” but asked, “at the same time, can you be fair and impartial?” Id.
Juror No. 6 responded affirmatively, but told the court “y’all just don’t understand
the Post Office.” Id.
Defense counsel told Juror No. 6 that he did not see how she could be
fair if she was worried about retaliation, to which Juror No. 6 responded that she
felt sorry for Blanton and could tell he was remorseful, but she could still be fair.
(Tr. 1037.)
After Juror No. 6 left the courtroom, defense counsel asked that she
be excused for cause and replaced with an alternate juror. After more discussion
between the prosecutor, defense counsel, and the court, Juror No. 6 returned to the
courtroom. The prosecutor assured her that she would not be present if Blanton
were sentenced, and then again asked her if she could be fair and impartial, despite
the unpleasantness of the situation. (Tr. 1054.) She responded affirmatively. Id.
Upon questioning by the court, Juror No. 6 again reiterated that she could be fair
and impartial in deciding the case. (Tr. 1062.) When asked if there was “any
question about that in your mind,” Juror No. 6 responded, “No.” Id. She also
assured the court that the jury had not started deliberating when she brought her
concern to the court’s bailiff (Tr. 1064), and that despite her earlier mention of
sentencing, the jury was “nowhere near that far.” (Tr. 1071.)
Because Juror No. 6 told the court that she had mentioned her
concern about knowing Blanton’s girlfriend to a few other jurors, the trial court
brought each juror individually into the courtroom and asked them whether any
conversations they had with Juror No. 6 would affect their ability to be fair and
impartial in the case. Each juror responded, “No.” The trial court then denied
defense counsel’s motion to remove Juror No. 6 for cause and replace her with an
alternate juror.
In his second assignment of error, Blanton contends that the trial
court abused its discretion by not removing Juror No. 6 for cause, thereby violating
his right to have his case heard by a fair and impartial jury. He contends that Juror
No. 6 was biased against him because of her fear of retaliation, and that her
statements that she could be fair and impartial were not believable because the
prosecutor and trial judge “talked her into staying” on the jury. (Appellant’s Brief,
p. 13.) Blanton’s arguments are without merit.
The right to be tried by a fair and impartial jury is a fundamental tenet
of our criminal justice system. State v. Whitmore, 8th Dist. Cuyahoga No. 78035,
2001 Ohio App. LEXIS 1999, 7 (May 3, 2001). A trial judge is empowered to remove
a juror and replace the juror with an alternate whenever facts are presented that
convince the trial judge that the juror’s ability to perform his or her duty — including
the duty to be impartial — is impaired. State v. White, 1st Dist. Hamilton No. C-
150250, 2016-Ohio-3329, ¶ 32. See also R.C. 2945.29 and Crim.R. 24(G)(1).
A judge has broad discretion in determining a juror’s ability to be
impartial. State v. Nields, 93 Ohio St.3d 6, 20, 752 N.E.2d 859 (2001). Resolution
of the impartiality issue rests in large part on the trial court’s assessment of the
juror’s credibility and demeanor, and the context in which the issue arises. White at
¶ 34, citing Skilling v. United States, 561 U.S. 358, 386, 130 S.Ct. 2896, 177 L.Ed.2d
619 (2010); State v. Williams, 79 Ohio St.3d 1, 8, 679 N.E.2d 646 (1997). We review
the trial court’s decision on whether to remove a juror for cause for an abuse of
discretion. State v. Smith, 80 Ohio St.3d 89, 105, 684 N.E.2d 668 (1997). “A court
abuses its discretion when a legal rule entrusts a decision to a judge’s discretion, and
the judge’s exercise of that discretion is outside of the legally permissible range of
choices.” State v. Hackett, Slip Opinion No. 2020-Ohio-6699, ¶ 19, citing United
States v. E.I. du Pont de Nemours & Co., 366 U.S. 316, 372, 81 S.Ct. 1243, 6 L.Ed.2d
318 (1961) (Frankfurter, J., dissenting). Abuse-of-discretion review is deferential
and does not permit an appellate court to simply substitute its judgment for that of
the trial court. State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d
971, ¶ 34.
We find no abuse of discretion in the trial court’s decision to retain
Juror No. 6. Although Juror No. 6 admittedly cited her concern about how news of
a conviction would be received at the Post Office, she did not identify any actual
threats to her safety; she merely said that the Post Office is “like a big high school”
where people like to gossip. (Tr. 1070.) More importantly, she stated repeatedly
that her concern about any possible retaliation at work would not affect her ability
to decide the case fairly and impartially. Her repeated assertions that she could be
fair and impartial in deciding the case were borne out by the jury verdict: not guilty
of Counts 1, 2, and 3 but guilty of Count 4, aggravated robbery. She, and the other
members of the jury, evaluated the evidence and convicted Blanton of a crime he
admitted to on the stand, but found him not guilty of the three other more serious
charges. Blanton’s assertion that Juror No. 6 was biased against him and unable to
decide the case solely upon the evidence is simply not true.5
It is also not true that Juror No. 6 was “talked into staying” on the jury.
The record reflects that the prosecutor asked only a few questions of her before she
5Blanton’s argument that Juror No. 6’s fear of retaliation made her biased against
him and cause for removal from the jury is also logically inconsistent. “[A] juror
concerned about retaliation would presumably be more likely to vote to acquit, rather
than to convict.” State v. Noriega, 10th Dist. Franklin No. 18AP-979, 2020-Ohio-4201,
¶ 31. Under this reasoning, it would seem to have been in Blanton’s best interest to retain
Juror No. 6 on the jury.
assured the court that she could indeed be fair and impartial, despite her concern.
(Tr. 1032-1035.) Upon our review of the record, we find her assurances of fairness
and impartiality to be entirely credible.
Under these circumstances, we find no abuse of discretion in the trial
court’s decision to deny Blanton’s motion to dismiss Juror No. 6 for cause. The
second assignment of error is therefore overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and
MICHELLE J. SHEEHAN, J., CONCUR