State v. Blackburn
2022 Ohio 988
Ohio Ct. App.2022Background
- Blackburn was indicted on four counts arising from a November 23, 2020 incident: having weapons while under disability, felonious assault (with a firearm specification), improperly discharging a firearm into a habitation (with a firearm specification), and using weapons while intoxicated.
- Victims (daughter and son‑in‑law) testified Blackburn, while intoxicated, fired multiple shots toward/into the house; deputies recovered spent projectiles and casings and found handguns in Blackburn’s camper.
- Blackburn admitted in a recorded interview he drank whiskey, blacked out, owned two guns, and fired his revolver outside, possibly hitting the house.
- A jury convicted Blackburn on all counts. At sentencing the State and defense agreed Counts Two (felonious assault) and Three (improper discharge into a habitation) were allied and should merge; the State elected sentencing on Count Three.
- The trial court accepted merger but also, “in the alternative,” imposed a concurrent sentence on the merged felonious‑assault count and ordered firearm specifications to run consecutively, producing an aggregate exposure greater than permitted by merger. Blackburn appealed, raising ineffective‑assistance claims (failure to request intoxication/volition instructions), merger error, and improper sentencing on the firearm specification attached to the merged count.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Blackburn) | Held |
|---|---|---|---|
| 1. Trial counsel ineffective for not requesting jury instruction that voluntary intoxication negates mental state | R.C. 2901.21(E) bars voluntary intoxication from negating mens rea; the given instruction correctly stated the law | Counsel should have requested intoxication as a defense to negate intent for felonies | Overruled — no deficient performance because intoxication cannot negate mens rea under amended R.C. 2901.21(E) |
| 2. Trial counsel ineffective for not requesting volitional/involuntary‑act (blackout) instructions | Court properly instructed per statute; no basis to give involuntary‑act/blackout instruction absent evidence of unconsciousness | Counsel should have sought instruction on involuntary acts/blackouts because Blackburn claimed he blacked out | Overruled — record showed intoxication and memory loss, not unconsciousness; no plain error or deficient performance |
| 3. Trial court improperly sentenced on allied offense (felonious assault) despite merger | State agreed to merger at sentencing and elected Count Three; sentencing on both would be invited error if State now says they are not allied | Trial court erred by imposing an alternative concurrent sentence on the merged Count Two | Sustained — trial court committed plain error by sentencing on both allied offenses; remand for limited resentencing on merged counts |
| 4. Whether firearm specification attached to merged felonious assault must merge (i.e., may court impose its 3‑year specification) | Firearm specifications here need not merge; R.C. 2929.14(B)(1)(g) authorizes imposing specification terms for multiple felonies (esp. felonious assault) | The firearm spec attached to the merged offense should not be imposed because the underlying offense was merged | Overruled (for defendant): Court followed Fifth District reasoning — firearm specifications do not merge under R.C. 2929.14(B)(1)(g); sentencing on both specs (with two consecutive three‑year terms) was permissible |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes two‑pronged ineffective assistance standard)
- State v. Whitfield, 124 Ohio St.3d 319 (allied‑offense merger principles under R.C. 2941.25)
- State ex rel. Romine v. McIntosh, 162 Ohio St.3d 501 (merger prohibition and allied‑offense guidance)
- State v. Cooperrider, 4 Ohio St.3d 226 (plain‑error review for omitted jury instructions)