2021 Ohio 3076
Ohio Ct. App.2021Background
- On May 9, 2019 Walkers discovered a running grey pickup at the back of a remodeling property owned by Jerome Walker; personal items were strewn outside and a screen/window was removed.
- Gary Blenman was on the property near the truck; items found in his truck (ladder, tiles, remote helicopter) were claimed by the Walkers as theirs; Blenman gave varying explanations (buying the property, working on houses).
- Blenman was indicted for burglary under R.C. 2911.12(A)(2) (second-degree) and theft (fifth-degree); he was convicted by a jury on both counts and sentenced to 8–12 years (Count One) and 12 months concurrent (Count Two).
- On appeal Blenman argued (1) insufficient evidence that the structure was a permanent or temporary habitation (required for A(2)); (2) ineffective assistance for not striking a juror who was a retired police chief; and (3) COVID-19 jury selection/process violated his rights and denied a representative cross-section.
- The court held the state failed to prove the habitation element for A(2) but that the evidence supported burglary under R.C. 2911.12(A)(3) (third-degree); the court vacated the A(2) conviction, entered A(3) conviction as a lesser-included offense, and remanded for resentencing.
- The court rejected Blenman’s ineffective-assistance and COVID-19/fair-cross-section claims as without merit (the latter also waived for failure to raise below).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for burglary under R.C. 2911.12(A)(2) (habitation element) | State: property falls within "occupied structure" and burglary A(2) proven by evidence of intrusion and possession of owners' items | Blenman: property was not a permanent or temporary habitation (Walkers lived elsewhere; furniture not set up) | The habitation element was not proven; A(2) conviction vacated; conviction modified to lesser-included A(3) burglary and remanded for resentencing |
| Ineffective assistance for failing to strike retired police-chief juror | State: counsel’s voir dire was reasonable; juror indicated impartiality | Blenman: counsel should have excluded juror Walker; counsel’s limited questioning facilitated his seating | No deficient performance or prejudice shown; claim denied |
| COVID-19 precautions and jury representativeness (fair-cross-section) | State: court’s precautions were lawful and minimally impacted jury composition; only one potential juror excused for COVID concerns | Blenman: pandemic exclusions made venire non-representative and biased against a fair jury | Waived for failure to raise under Crim.R.24(F); alternatively meritless—no prima facie Duren violation shown; precautions within court’s discretion |
| Modification to lesser-included offense without new trial | State: modification permissible where evidence supports lesser offense | Blenman: (implied) prejudiced by lack of instruction on lesser included | Court applied Crim.R.33(A)(4) principles: no additional fact-finding required; modification to A(3) permitted and not prejudicial |
Key Cases Cited
- State v. Jenks, 61 Ohio St.3d 259 (Ohio 1991) (standard for reviewing sufficiency of the evidence)
- Jackson v. Virginia, 443 U.S. 307 (U.S. 1979) (reasonable-doubt sufficiency standard for convictions)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-pronged ineffective-assistance test)
- State v. Bradley, 42 Ohio St.3d 136 (Ohio 1989) (Ohio adopts Strickland framework)
- Duren v. Missouri, 439 U.S. 357 (U.S. 1979) (prima facie test for fair-cross-section challenge)
- State v. Mundt, 115 Ohio St.3d 22 (Ohio 2007) (courts decline to second-guess voir dire strategy)
- State v. Murphy, 91 Ohio St.3d 516 (Ohio 2001) (trial counsel best positioned to decide juror questioning)