State v. Blanton

• Decision Date: 27 March 2018
• Docket Number: No. 16CA1035,16CA1035
• Citation: 110 N.E.3d 1,2018 Ohio 1278
• Parties: STATE of Ohio, Plaintiff–Appellee, v. Denny W. BLANTON, Jr., Defendant–Appellant.
• Court: Ohio Court of Appeals

110 N.E.3d 1

2018 Ohio 1278

STATE of Ohio, Plaintiff–Appellee,

v.Denny W. BLANTON, Jr., Defendant–Appellant.

No. 16CA1035

Court of Appeals of Ohio, Fourth District, Adams County.

Released: March 27, 2018

Dennis C. Belli, Columbus, Ohio, for Appellant.

C. David Kelley, Adams County Prosecutor, and Kris D. Blanton and Mark R. Weaver, Assistant Adams County Prosecutors, West Union, Ohio, for Appellee.

DECISION AND JUDGMENT ENTRY

McFarland, J.

{¶ 1} Denny W. Blanton, Jr., appeals the judgment entry on sentence filed November 9, 2016 in the Adams County Court of Common Pleas. Blanton was convicted by a jury on three counts: (1) kidnapping, in violation of R.C. 2905.01(B) (2) ; (2) felonious assault, in violation of R.C. 2903.11(A) (1) ; and (3) assault, in violation of R.C. 2903.13(A). On appeal, Blanton asserts eight assignments of error. However, having fully reviewed the record, we find no merit to the arguments raised in the eight assignments of error. Accordingly, we overrule Appellant's assignments of error and affirm the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellant's convictions arise subsequent to his involvement in jail fights which occurred at the Adams County Jail during the month of June 2016. Appellee has indicated in its brief that Appellee agrees with the statement of the case and statement of facts as set forth in Appellant's brief. Therefore, we relate the facts as set forth in Appellant's brief.

{¶ 3} Appellant, an 18–year–old male, was confined in cell block E4 of the Adams County Jail in June 2016, awaiting trial in another matter, along with inmates Gary Lunsford, Robert Long, Mark Mefford, Josh Gray, Zachary McKee, and Devon Michaels. The security and surveillance system at the Adams County Jail consists of a "catwalk," a hallway between the exterior wall of the building and the housing units; a video camera at each end of the catwalk to capture images of activities in the main area of the cell block; and a "call box." The inmates engaged in "rough-housing" and "horseplay," which Appellant attributes to a lack of supervision by jail personnel. The inmates harassed each other with "towel-snapping" and organized "fighting" for entertainment.

{¶ 4} In mid-June, Lieutenant Micah Poe, the jail administrator, began noticing that the inmates were coming out of the cell with injuries. Inmates Gary Lunsford, Josh Gray, and Mark Mefford were observed with bruising. Lunsford was noted to have visible injuries to his head, stomach, and back, so he was referred for treatment at Adams County Hospital, and an investigation of the matter was initiated.

{¶ 5} After taking statements from the inmates, Poe recommended the filing of criminal charges against McKee, Michaels, and Appellant. On July 8, 2016, an Adams County Grand Jury indicted Appellant for several felony offenses allegedly occurring during this period of time. The indictment contained five counts which alleged as follows:

Count 1: On or about June 5 and June 17, 2016 in Adams County Ohio Denny Blanton Jr. did by force, threat or deception remove Gary Lunsford from the place where the other person was found, or restrained the liberty of Gary Lunsford with purpose to terrorize, or inflict serious physical harm on the said Gary Lunsford, in violation of R.C. 2905.01(A) (3), Kidnapping, a felony of the first degree;

Count 2: On or about and between June 18 and June 19, 2016 in Adams County, Ohio Denny Blanton Jr. did by force, threat or deception knowingly, under circumstances creating a substantial risk of physical harm to Gary Lunsford, restrain Lunsford of his liberty, in violation of R.C. 2905.01(B)(2), Kidnapping, a felony of the first degree;

Count 3: On or about June 5 and June 18, 2016 in Adams County, Ohio Denny Blanton Jr. did by force, threat or deception remove Josh Gray from the place where the other person was found, or restrain the liberty of Josh Gray with purpose to terrorize, or inflict serious physical harm on the said Josh Gray, in violation of R.C. 2905.01(A) (3), Kidnapping, a felony of the first degree;

Count 4: On or about and between June 17 and June 18, 2016 in Adams County, Ohio Denny Blanton Jr. did knowingly cause serious physical harm to Gary Lunsford, in violation of R.C. 2903.11(A)(1), Felonious Assault, a felony of the second degree; and,

Count 5: On or about and between June 5 and June 18, 2016 in Adams County, Ohio Denny Blanton Jr. did knowingly cause or attempt to cause physical harm to Josh Gray, in violation of R.C. 2903.13(A), Assault, a misdemeanor of the first degree.

{¶ 6} Appellant was arraigned, entered pleas of not guilty, and the matter was placed on the court's trial docket. On October 27, 2016, Appellant filed a motion to dismiss the indictment due to the Adams County Sheriff's Office's failure to preserve video footage from the jail surveillance system between the dates of June 5, 2016 to June 18, 2016. The matter came on for hearing on October 31, 2016. The trial court did not actually receive testimony regarding the circumstances surrounding the deletion of the video footage, but made its ruling based upon the representations and arguments of counsel. Appellant did not attend the hearing on the motion.

{¶ 7} Appellant ultimately proceeded to a three-day jury trial beginning on November 7, 2016. The State presented its evidence, largely through the testimony of victim Gary Lunsford, Lieutenant Micah Poe, other inmates Robert Long and Mark Mefford, and Dr. Richard Durbin of the Adams County Medical Center. The defense presented evidence via the testimony of Deputy Chelsea Phelps.

{¶ 8} At the close of trial, the trial court granted Appellant's Crim.R. 29 motion for acquittal as to Count 3 which alleged the kidnapping of Josh Gray. The jury found Appellant not guilty of Count 1, which alleged the kidnapping of Gary Lunsford during the June 5 to June 17 time frame. The jury found Appellant guilty of the three remaining counts.

{¶ 9} Appellant was sentenced to consecutive 6–year prison terms on the kidnapping and felonious assault counts, and a concurrent 6–month jail term on the misdemeanor assault count. Prior to Appellant's trial in this case, he had been convicted in Adams County of kidnapping and rape, both counts containing violent sexual predator specifications.¹ The trial court ordered that Appellant's sentence to be served consecutively to the previously imposed sentences in the earlier case.

{¶ 10} This timely appeal followed. Additional facts will be set forth, where pertinent.

ASSIGNMENTS OF ERROR

"I. DEFENDANT–APPELLANT'S CONVICTION FOR FELONIOUS ASSAULT IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

II. DEFENDANT–APPELLANT'S CONVICTION FOR KIDNAPPING IS NOT SUPPORTED BY SUFFICIENT EVIDENCE TO SATISFY THE REQUIREMENTS OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

III. THE TRIAL COURT APPLIED AN INCORRECT LEGAL STANDARD AND/OR ABUSED ITS DISCRETION, AND VIOLATED DEFENDANT–APPELLANT'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A

RELIABLE JURY VERDICT, WHEN IT DENIED HIS REQUEST FOR A JURY INSTRUCTION ON SIMPLE ASSAULT AS A LESSER–INCLUDED OFFENSE OF FELONIOUS ASSAULT.

IV. AN INCOMPLETE AND MISLEADING COMPLICITY INSTRUCTION VIOLATED THE TRIAL COURT'S STATUTORY DUTY UNDER R.C. 2945.11 TO CHARGE THE JURY AS TO ALL MATTERS NECESSARY TO RENDER A FAIR VERDICT AND DEPRIVED DEFENDNAT–APPELLANT OF HIS FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS AND A RELIABLE JURY DETERMINATION AS TO EACH ELEMENT OF THE OFFENSES OF CONVICTION.

V. THE TRIAL COURT'S ADJUDICATION OF DEFENDANT–APPELLANTS MOTION TO DISMISS (FOR FAILURE TO PRESERVE EVIDENCE) FOLLOWING A HEARING CONDUCTED IN HIS ABSENCE AND WITHOUT FORMAL TESTIMONY ON THE DISPUTED ISSUES OF FACT VIOLATED HIS RIGHTS UNDER CRIM.R. 43, THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.

VI. THE TRIAL COURT'S REFUSAL TO PERMIT DEFENSE COUNSEL TO CROSS–EXAMINE THE LEAD INVESTIGATOR ABOUT HIS FAILURE TO PRESERVE THE JAIL VIDEO FOOTAGE VIOLATED DEFENDANT–APPELLANT'S RIGHT OF CONFRONTATION UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE OHIO CONSTITUTION.

VII. DEFENDANT–APPELLANT WAS DENIED HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL, AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, DUE TO MULTIPLE INSTANCES OF DEFICIENT PERFORMANCE.

VIII. THE TRIAL COURT UNLAWFULLY ORDERED THAT THE PRISON TERM IMPOSED IN THIS CASE BE SERVED CONSECUTIVELY TO THE PRISON TERMS IMPOSED IN A PRIOR CASE IN ORDER TO PUNISH DEFENDANT–APPELLANT FOR REFUSING A PLEA BARGAIN AND EXERCISING HIS CONSTITUTIONAL RIGHT TO TRIAL."

ASSIGNMENT OF ERROR ONE

{¶ 11} Under the first assignment of error, Appellant challenges the sufficiency of the evidence to support his conviction for felonious assault. Appellant points out the crime of felonious assault requires proof that he knowingly caused serious physical harm to Gary Lunsford. Appellant argues his conviction is not supported by sufficient evidence beyond a reasonable doubt to prove he acted either as a principal offender or as collective participant, given the video evidence and testimony regarding the timing of Lunsford's being "sucker punched" by one of the other inmates.

STANDARD OF REVIEW

{¶ 12} A claim of insufficient evidence invokes a due process concern and raises the question of whether the evidence is legally sufficient to support the verdict as a matter of law. State v. Deckard, 2017-Ohio-8469, 100 N.E.3d 53, ¶ 29. State v. Dunn, 4th Dist. Jackson No. 15CA1, 2017-Ohio-518, 2017 WL 587317, ¶ 13 ; State v. Wickersham, 4th Dist. Meigs No. 13CA10, 2015-Ohio-2756, 2015 WL 4113316, ¶ 22 ; State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). When reviewing the sufficiency...