State v. Gardner, No. 2007-0375.

CourtUnited States State Supreme Court of Ohio
Writing for the CourtO'Connor
Citation118 Ohio St.3d 420,2008 Ohio 2787,889 N.E.2d 995
PartiesThe STATE of Ohio, Appellant, v. GARDNER, Appellee.
Docket NumberNo. 2007-0375.
Decision Date18 June 2008
889 N.E.2d 995
118 Ohio St.3d 420
The STATE of Ohio, Appellant,
GARDNER, Appellee.
No. 2007-0375.
Supreme Court of Ohio.
Submitted January 23, 2008.
Decided June 18, 2008.

[889 N.E.2d 998]

Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and R. Lynn Nothstine and Carley J. Ingram, Assistant Prosecuting Attorneys, for appellant.

Richard A. Nystrom, Dayton, for appellee.


118 Ohio St.3d 420

{¶ 1} Appellee, Reginald Gardner Jr., was indicted on one count of aggravated burglary in violation of R.C. 2911.11(A)(2),

889 N.E.2d 999

with a firearm specification; one count of felonious assault in violation of R.C. 2903.11(A)(2), with a firearm specification; and one count of burglary in violation of R.C. 2911.12(A)(2). At trial, the jury found him guilty of aggravated burglary with the firearm specification but acquitted him on the other offenses.

{¶ 2} Gardner appealed, asserting that his due process rights were violated because the jury instructions did not specify that the jury needed to agree unanimously as to which criminal offense Gardner intended to commit during the course of the aggravated burglary. The court of appeals agreed and vacated his conviction. We now reverse.


{¶ 3} On the evening of April 25, 2005, Ebony Lee prepared dinner in her home for her three children. Her boyfriend, James Pippins, was present at the time.

118 Ohio St.3d 421

{¶ 4} While the children were eating, Lee telephoned Gardner to purchase marijuana from him. A short time later, Gardner arrived at Lee's home accompanied by a friend, codefendant Turrell Justice.

{¶ 5} Lee spoke with Gardner and Justice from her back porch. Gardner and Justice argued over whether Justice could have some of the marijuana that Gardner had brought for Lee.

The State's Case: Aggravated Burglary

{¶ 6} From inside the house, Pippins heard the raised voices and, apparently believing that Gardner and Justice were arguing with Lee, confronted Gardner. But upon learning that he had misunderstood the situation, he calmed down, admitted his mistake, and went back inside. Gardner, however, was not pleased.

{¶ 7} Despite Pippins's retreat, Gardner continued to yell at Pippins and repeatedly threatened to kill him. Lee no longer wanted to purchase the marijuana and opened the screen door to go back into her apartment. Gardner grabbed the door from Lee's hand, pushed her out of the way, and entered her home.

{¶ 8} After entering Lee's home, Gardner assaulted Pippins. The men fought, and Pippins eventually "slammed" Gardner on the floor.

{¶ 9} At that time, Justice, who had also entered Lee's apartment without her permission, attempted to assist Gardner. Lee grabbed Justice by the back of his shirt to prevent him from doing so, and Lee and Justice then "tussl[ed]." Justice stepped back, lifted his shirt, pulled a gun from his pants, and pointed it at Pippins's back.

{¶ 10} Gardner repeatedly demanded that Justice give him the gun to kill Pippins. Justice refused, stating, "No, we got three kids in here. I got three kids, I know how it is. We going to catch [Pippins] in the `hood. We going to kill him." Gardner and Justice then left Lee's apartment.

{¶ 11} During the state's closing statements to the jury, it argued that this initial entry without permission constituted the aggravated-burglary offense. In its brief before this court, the state avers that the felonious-assault count of the indictment also arose from this initial portion of the incident. Our review of the record, however, establishes that the state's real theory at trial was that a subsequent portion of the incident, described below, served as the basis for the felonious-assault and burglary charges.

The State's Case: Felonious Assault and Burglary

{¶ 12} Lee testified that after Gardner and Justice left her home, she called the police. She then arranged for her cousin to pick her up. The police responded

889 N.E.2d 1000
118 Ohio St.3d 422

and began to search the neighborhood for Gardner and Justice. As they did so, Lee gathered her children, and she and Pippins prepared to leave the premises and stay with relatives.

{¶ 13} Before they could leave, however, Gardner and Justice allegedly returned to Lee's home with approximately eight people, whom Gardner referred to as his "killers." As Gardner approached Lee's back door, he reiterated his threats to kill Pippins. Pippins attempted to placate him, but to no avail. While the men argued, Lee gathered her children into her cousin's car.

{¶ 14} Lee testified that as she and her family were driven to a nearby parking lot to safely await the police's arrival, she observed Gardner kick in her back door. Although she "assumed" that Gardner entered her apartment because she no longer saw him, her testimony was equivocal on that point.

{¶ 15} Lee also testified that as Gardner kicked in the back door, the group of men that had accompanied him ran to the front of her apartment, apparently to trap Pippins. Before they got there, Pippins escaped through the front door, jumped a fence, and fled down the street.

{¶ 16} Lee and other witnesses at trial testified that either Justice or Gardner, or both, were shooting at Pippins as he ran from the scene. That testimony was somewhat confused and, at times, contradictory.

The Defense

{¶ 17} Justice and Gardner were tried together. Neither testified at trial. Defense counsel conceded that Justice and Gardner had gone to Lee's apartment to sell her marijuana and that there had been a disagreement there between Gardner and Pippins. They asserted their clients' innocence of the crimes charged, however, claiming that their clients had been falsely accused and that the state's case lacked factual and legal bases.

{¶ 18} Justice's attorney argued that Justice had merely attempted to break up the fight between Gardner and Pippins and that Justice had no intent to commit a crime in Lee's home. He also stated that after the fight ended, Justice and Gardner left the scene. Defense counsel denied that Justice had had a gun and stressed repeatedly that there was no physical evidence of a firearm or of a shooting at the scene.

{¶ 19} Gardner's counsel's theme was similar to Justice's. He suggested that as Lee spoke to Gardner about the marijuana, Pippins went into "a jealous fit of rage" and began yelling at Gardner, a reaction that angered Gardner and led to the men fighting on Lee's back porch. Counsel asserted that as Gardner and Pippins fought, they "[got] up against the [back] door," the door opened, and the men "fell" into Lee's apartment.

118 Ohio St.3d 423

{¶ 20} Gardner's counsel conceded that Pippins was victorious in the fight. He argued that Gardner had chased Pippins out of the house, but that Gardner had done so only because he wanted to even the score. Counsel claimed that Gardner abandoned the chase and went home, never returning to Lee's apartment.

{¶ 21} Gardner's counsel expressly denied that Gardner had had a gun and, like Justice's attorney, repeatedly stressed to the jury that there was no physical evidence of gunfire at or outside Lee's home.

{¶ 22} In their closing arguments to the jury, defense counsel reiterated these themes. They suggested that the state had not produced enough credible evidence to sustain a conviction on any of the charges. From these arguments, it is

889 N.E.2d 1001

clear that defense counsel understood that the state's theory was that the felonious-assault charge arose from the shooting outside, not the fight that had occurred inside Lee's apartment.

The Jury's Instructions, the Verdicts, and the Appeal

{¶ 23} The jury instruction on aggravated burglary, which tracked the indictment and the language of R.C. 2911.11(A)(2), stated:

{¶ 24} "In Count Three of the indictment, Mr. Reginald Gardner is charged with aggravated burglary. Before you can find Mr. Gardner guilty of this offense, you must find beyond a reasonable doubt that on or about April 25, 2005, in Montgomery County, Ohio, he did, by force, stealth or deception, trespass in an occupied structure, to-wit [Lee's apartment], or in a separately secured or separately occupied portion of the occupied structure, when another person, other than an accomplice of the offender, was present, with the purpose to commit in the structure or in the separately secured or separately occupied portion of the structure any criminal offense, and did have a deadly weapon or dangerous ordnance, to-wit, a handgun, on or about his person or under his control.

{¶ 25} "* * *

{¶ 26} "If you find that the State failed to prove beyond a reasonable doubt any one of the essential elements of aggravated burglary charged against Mr. Gardner in Count Three, then your verdict must be not guilty."

{¶ 27} Although the instructions to the jury included a statement that "when all twelve — I repeat, all twelve — agree on your verdicts, complete the verdict forms, sign them in ink, and notify the bailiff," the judge did not give a more specific unanimity instruction, and he did not instruct the jury that it needed to agree as to which offense Gardner had intended to commit in the home. Nor did the judge instruct the jury on any specific crime that Gardner allegedly committed

118 Ohio St.3d 424

that would satisfy the "any criminal offense" prong of the statute.1

{¶ 28} After deliberating for a day, the jury returned its verdicts. It acquitted both Justice and Gardner of felonious assault and Gardner of burglary. However, it found both men guilty of aggravated burglary and the related firearm specification.

{¶ 29} Gardner appealed, raising several propositions. The court of appeals rejected most of his claims, including his argument that the convictions were supported by insufficient evidence and were against the manifest weight of the evidence. State v. Gardner, Montgomery App. No. 21357, 2007-Ohio-182, 2007 WL 127663, ¶ 9-20. It agreed, however, with Gardner's...

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    • United States
    • United States District Courts. 6th Circuit. United States District Court of Northern District of Ohio
    • 9 Diciembre 2015
    ...first crime requires proof of the second, may not be disturbed merely because the two findings are irreconcilable." State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 81. See also State v. Gapen, 104 Ohio St.3d 358, 2004-Ohio-6548, 819 N.E.2d 1047; State v. Adams, 53 Oh......
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    • 16 Agosto 2018
    ...substantial rights. Id.In Ohio, the courts looked to unanimity in the context of statutory "sexual conduct." State v. Gardner, 118 Ohio St.3d 420, 889 N.E.2d 995, 1005 (2008). Because the statutory definition included both vaginal and anal intercourse, the court "concluded that jurors neede......
  • The State Of Ohio v. Kaufman, 08 MA 57.
    • United States
    • United States Court of Appeals (Ohio)
    • 31 Marzo 2010
    ...that effectively relieve the state of its burden of persuasion violate a defendant's due process rights.’ ” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 36, quoting State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 97. A specific jury inst......
  • State v. Blankenburg, CA2010–03–063.
    • United States
    • United States Court of Appeals (Ohio)
    • 26 Marzo 2012
    ...the Ohio Supreme Court to discuss jury unanimity, although not addressing duplicity specifically, is 966 N.E.2d 981 State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995. In Gardner, the Ohio Supreme Court discussed a defendant's rights under the United States and Ohio Consti......
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  • State v. Armstead, No. 26640.
    • United States
    • United States Court of Appeals (Ohio)
    • 4 Diciembre 2015
    ...a provision in the U.S. Constitution that has been reasonably interpreted by the Supreme Court.” (Citation omitted.) State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 76.{¶ 71} To the same effect is State v. Smith, 124 Ohio St.3d 163, 2009-Ohio-6426, 920 N.E.2d 949, wh......
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    • 13 Febrero 2020
    ...means, at least where that definition risks serious unfairness and lacks support in history or tradition"); but cf. State v. Gardner , 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, ¶ 35 (plurality decision remarking that Ohio only imposes a unanimity requirement by rule). {¶ 28} Becau......
  • The State Of Ohio v. Kaufman, No. 08 MA 57.
    • United States
    • United States Court of Appeals (Ohio)
    • 31 Marzo 2010
    ...that effectively relieve the state of its burden of persuasion violate a defendant's due process rights.’ ” State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, 889 N.E.2d 995, at ¶ 36, quoting State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 97. A specific jury inst......
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    ...this was an alternative means case, not a multiple acts case, and, thus, no unanimity instruction was required."); State v. Gardner, 118 Ohio St.3d 420, 889 N.E.2d 995, 1005 (2008) ("[T]he critical inquiry is whether the case involves ‘alternative means' or ‘multiple acts.’ "); State v. Bob......
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