general unanimity instruction in Ohio

2006Appellant argues that he may have been convicted of either count by less than a unanimous jury, because some jurors may have found only that the office incident occurred, while others found that only the food room or storage room incident occurred. {¶ 27} The trial court instructed the jury that "[t]he charges set forth in each count in the indictment constitute a separate and distinct matter." The trial court further gave two separate unanimity instructions, directing that "all 12 jurors have to sign the verdicts[,]" and that "whenever all 12, repeat all 12, jurors agree upon a verdict, you w

2006A general unanimity instruction is sufficient to ensure a unanimous verdict on the factual basis for conviction "even where the indictment alleges numerous factual basis for liability." State v. Hamad, Cuyahoga App. No. 81189, 2003-Ohio-4401 . "`The verdict stands if the evidence is sufficient with respect to any one of the acts charged.'" Id., quoting State v. Johnson (1989), 46 Ohio St.3d 96 , 105 , quoting Turner v. United States (1970), 396 U.S. 398 . {¶ 34} The trial court explicitly and repeatedly instructed the jury of the need for a unanimous verdict.

2015No. 14AP-961 7 State v. Gardner, 118 Ohio St.3d 420 , 2008-Ohio-2787 , ¶ 48-50; see also State v. Fry, 125 Ohio St.3d 163 , 2010-Ohio-1017, ¶ 138 (remarking that the question of whether a general unanimity instruction is sufficient despite the existence of alternative means is whether a reasonable fact-finder could have found each means proved beyond a reasonable doubt by the evidence). {¶ 15} In this case the trial judge gave only a general instruction, "you must unanimously agree on your verdict." (Jury Instructions, 13.) Nevertheless, it is difficult to view the criminal acts by Boyd as "di

2008Here there was no such instruction." {¶ 44} The state responds, "no error occurred when the trial court gave only a general unanimity instruction rather than a special instruction that all twelve members were required to agree upon the same leg fracture as constituting proof beyond a reasonable doubt" that Nichols abused his daughter, in reliance upon State v. Gardner (2008), 118 Ohio St.3d 420 , 889 N.E.2d 995 , 2008-Ohio-2787 .

2008The restraint need not be for any specific duration or time or in any specific manner * * *." {¶ 33} United States Supreme Court cases reflect the long established criminal law rule that "it may be alleged in a single count that the means by which the defendant committed the offenses are unknown or that the defendant committed it by one or more specified means." Schad v. Arizona (1991), 501 U.S. 624 , 631 (citing Fed.R.Crim.P. 7 (c)(1)). {¶ 34} Moreover, in Ohio, the prevailing rule is that a general unanimity instruction, such as the one given in this case, "will ensure that the jury is unani

2007Hoover , supra. {¶ 62} In State v. Griffin (July 15, 2005), Montgomery App. No. 20681, 2005-Ohio-3698 , we recognized that the jury's verdict as to which underlying offense Defendant had a purpose to commit for purposes of aggravated burglary must be unanimous, although we held that the failure to give a special unanimity instruction in that regard does not constitute plain error where the court gave a general unanimity instruction, and although the court instructed the jury on alternative underlying offenses that might apply, the evidence was sufficient to support a conviction based upon at l

2008The restraint need not be for any specific duration or time or in any specific manner * * *." {¶ 33} United States Supreme Court cases reflect the long established criminal law rule that "it may be alleged in a single count that the means by which the defendant committed the offenses are unknown or that the defendant committed it by one or more specified means." Schad v. Arizona (1991), 501 U.S. 624 , 631 (citing Fed.R.Crim.P. 7 (c)(1)). {¶ 34} Moreover, in Ohio, the prevailing rule is that a general unanimity instruction, such as the one given in this case, "will ensure that the jury is unani

2008Nonetheless, the general unanimity instruction given by the trial court was proper in this case. {¶ 36} In Ohio, the prevailing rule is that a general unanimity instruction, such as the one given in this case, "will ensure that the jury is unanimous on the factual basis for a conviction even where the indictment alleges numerous factual bases for liability." State v. Gibbs , Cuyahoga App. No. 86126, 2006-Ohio-175 ; State v. Mercer , Cuyahoga App. No. 81923, 2003-Ohio-3530 .

2007Hoover , supra. {¶ 62} In State v. Griffin (July 15, 2005), Montgomery App. No. 20681, 2005-Ohio-3698 , we recognized that the jury's verdict as to which underlying offense Defendant had a purpose to commit for purposes of aggravated burglary must be unanimous, although we held that the failure to give a special unanimity instruction in that regard does not constitute plain error where the court gave a general unanimity instruction, and although the court instructed the jury on alternative underlying offenses that might apply, the evidence was sufficient to support a conviction based upon at l

2006Hoover, supra. {¶ 53} In State v. Griffin (July 15, 2005), Montgomery App. No. 20681, 2005-Ohio-3698 , we recognized that the jury's verdict as to which underlying offense Defendant had a purpose to commit for purposes of aggravated burglary must be unanimous, although we held that the failure to give a special unanimity instruction in that regard does not constitute plain error where the court gave a general unanimity instruction, and although the court instructed the jury on alternative underlying offenses that might apply, the evidence was sufficient to support a conviction based upon at le

2007State v. Avery (1998), 126 Ohio App. 3d 36 , 709 N.E.2d 875 .

2007State v. Avery (1998), 126 Ohio App. 3d 36 , 709 N.E.2d 875 .

2006In finding a general unanimity instruction adequate, the Johnson court reasoned: "However, even assuming arguendo that the jury had split on the alternatives offered by the specification, each juror still would have agreed that the appellant had murdered Eunice Graster in conjunction with at least attempting to commit aggravated robbery, and this alone would have been adequate to sustain the conviction." (Emphasis omitted.) Id. at 105 . {¶ 31} The reasoning and holding of Johnson are inapplicable to the instant case.

2006An exception exists, however, where a single count may be divided into two or more "distinct conceptual groupings." In such a case, the trial court must instruct the jury that "it must unanimously conclude that the defendant committed acts falling within one such grouping in order to reach a guilty verdict." Johnson, 46 Ohio St.3d at 104 , citing United States v. Gipson (C.A. 5, 1977), 553 F.2d 453 , 458.

2006State v. Smith (1985), 17 Ohio St.3d 98 , 100 . {¶ 70} Appellant first complains that trial counsel was ineffective for failing to object to a general unanimity instruction.

2006State v. Moreland (1990), 50 Ohio St.3d 58 , 62 , 552 N.E.2d 894 . {¶ 9} The prevailing rule is that "`a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction even where an indictment alleges numerous factual bases for criminal liability.'" State v. Johnson (1989), 46 Ohio St.3d 96 , 545 N.E.2d 636 , quoting United States v. Beros (C.A.3, 1987), 833 F.2d 455 , 460 . {¶ 10} The victim's testimony recounted at least three instances of rape: a vaginal rape on the couch in the living room, a vaginal rape in the bedroom, and an anal rape in the b

2006State v. Moreland (1990), 50 Ohio St.3d 58 , 62 , 552 N.E.2d 894 . {¶ 9} The prevailing rule is that "`a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction even where an indictment alleges numerous factual bases for criminal liability.'" State v. Johnson (1989), 46 Ohio St.3d 96 , 545 N.E.2d 636 , quoting United States v. Beros (C.A.3, 1987), 833 F.2d 455 , 460 . {¶ 10} The victim's testimony recounted at least three instances of rape: a vaginal rape on the couch in the living room, a vaginal rape in the bedroom, and an anal rape in the b

2003Ineffective Assistance of Counsel {¶ 21} In his second assignment of error, Mercer argues that his counsel was ineffective for failing to object to the trial court's general unanimity instruction on the kidnapping charge and by failing to request a verdict form setting forth the various sections of kidnapping on which Mercer was indicted. {¶ 22} This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ; State v. Bradley (1989), 42 Ohio St.3d 13 .

2003Ineffective Assistance of Counsel {¶ 21} In his second assignment of error, Mercer argues that his counsel was ineffective for failing to object to the trial court's general unanimity instruction on the kidnapping charge and by failing to request a verdict form setting forth the various sections of kidnapping on which Mercer was indicted. {¶ 22} This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ; State v. Bradley (1989), 42 Ohio St.3d 13 .

2003Ineffective Assistance of Counsel {¶ 21} In his second assignment of error, Mercer argues that his counsel was ineffective for failing to object to the trial court's general unanimity instruction on the kidnapping charge and by failing to request a verdict form setting forth the various sections of kidnapping on which Mercer was indicted. {¶ 22} This court reviews a claim of ineffective assistance of counsel under the two-part test set forth in Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 ; State v. Bradley (1989), 42 Ohio St.3d 13 .

1998In Fryer v. Nix (C.A.8 1985), 775 F.2d 979, 992 , the court rejected the rationale in Gipson , stating: “The mere fact * * * that an instruction could conceivably permit a jury to reach a non-unanimous verdict is not sufficient to require reversal when the jury has been instructed that it must reach a unanimous verdict.” Furthermore, in United States v. Schiff, supra, the court found a general unanimity instruction adequate except in cases where the “complexity of the evidence or other factors create a genuine danger of jury confusion.” Schiff, 801 F.2d at 114-115 .

1998See, also, State v. Johnson (1989), 46 Ohio St.3d 96, 104-105 , 545 N.E.2d 636, 643-645 ; United States v. Beros (C.A.3, 1987), 833 F.2d 455, 461 (where there appears a possibility of jury confusion in light of the allegations made and the statute charged, the general unanimity instruction does not suffice; instead, an augmented general instruction is necessary to ensure that the jury understands its duty to unanimously agree to a particular set of facts); United States v. Duncan (C.A.6,1988), 850 F.2d 1104 .

1989Thus, the prevailing rule is, “a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability.” United States v. Beros (C.A. 3, 1987), 833 F. 2d 455, 460 , citing United States v. Schiff (C.A. 2, 1986), 801 F. 2d 108 , certiorari denied (1987), 480 U.S. 945 ; United States v. Frazin (C.A. 9, 1986), 780 F. 2d 1461 , certiorari denied (1986), 479 U.S. 839 , 844; United States v. Murray (C.A. 2,1980), 618 F. 2d 892 .

1989Thus, the prevailing rule is, “a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability.” United States v. Beros (C.A. 3, 1987), 833 F. 2d 455, 460 , citing United States v. Schiff (C.A. 2, 1986), 801 F. 2d 108 , certiorari denied (1987), 480 U.S. 945 ; United States v. Frazin (C.A. 9, 1986), 780 F. 2d 1461 , certiorari denied (1986), 479 U.S. 839 , 844; United States v. Murray (C.A. 2,1980), 618 F. 2d 892 .

1989Thus, the prevailing rule is, “a general unanimity instruction will ensure that the jury is unanimous on the factual basis for a conviction, even where an indictment alleges numerous factual bases for criminal liability.” United States v. Beros (C.A. 3, 1987), 833 F. 2d 455, 460 , citing United States v. Schiff (C.A. 2, 1986), 801 F. 2d 108 , certiorari denied (1987), 480 U.S. 945 ; United States v. Frazin (C.A. 9, 1986), 780 F. 2d 1461 , certiorari denied (1986), 479 U.S. 839 , 844; United States v. Murray (C.A. 2,1980), 618 F. 2d 892 .