Opinion
2022CA00040
02-28-2023
STATE OF OHIO Plaintiff-Appellee v. RANDY BLANDING Defendant-Appellant
For Plaintiff-Appellee KYLE L. STONE Prosecuting Attorney Stark County, Ohio VICKI L. DESANTIS Assistant Prosecuting Attorney For Defendant-Appellant GEORGE URBAN
Appeal from the Stark County Court of Common Pleas, Case No. 2021-CR-2225
For Plaintiff-Appellee KYLE L. STONE Prosecuting Attorney Stark County, Ohio VICKI L. DESANTIS Assistant Prosecuting Attorney
For Defendant-Appellant GEORGE URBAN
JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Patricia A. Delaney, J.
OPINION
Hoffman, P.J.
{¶1} Defendant-appellant Randy Aaron Blanding appeals the judgment entered by the Stark County Common Pleas Court convicting him of aggravated robbery (R.C. 2911.01(A)(1),(C)), grand theft of a motor vehicle (R.C. 2913.02(A)(1)(B)(5)), two counts of petty theft (R.C. 2913.02(A)(1),(B)(2)), criminal damaging or endangering (R.C. 2909.06(A)(1),(B)) and aggravated menacing (R.C. 2903.21 (A),(B)) following a jury's finding of guilt, and sentencing him to an aggregate prison term of nine to thirteen and one-half years. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE FACTS AND CASE
{¶2} Appellant was involved in an on-and-off, non-exclusive relationship with K.G. in August of 2021. K.G. lived with her friend D.D. in a duplex on 16th Street in Canton, Ohio.
{¶3} On August 4, 2021, K.G. spent the day with Appellant. Appellant wanted to have sex with K.G., but she declined because she was having her period. Appellant then left K.G.'s home. K.G. also left, and went to a male friend's house.
{¶4} D.D. worked an afternoon shift, and returned home before midnight. After D.D. had gone to bed, Appellant knocked at the door. D.D. told Appellant K.G. was not home, and did not let Appellant into the apartment. D.D. called K.G. to tell her Appellant was looking for her. D.D. locked the bottom lock of the back doors to the duplex and went to bed.
{¶5} K.G. returned home, and found both the top and bottom locks on the front and back doors to the duplex were locked, which was unusual, as they normally only locked one of the two locks on each door. K.G. woke D.D. up to ask about the locks. D.D. said she had not locked both locks.
{¶6} K.G. then called the male friend she had spent the evening with to let him know she arrived home safely. Appellant suddenly appeared while she was talking, and he was holding a gun. He appeared upset and angry, yelling at K.G. to call the person on the phone back. D.D. was surprised to discover Appellant was in the apartment, as she had not let him in. D.D. tried to grab her cell phone, but Appellant grabbed the phone first.
{¶7} Appellant pointed the gun at K.G., who panicked because although they had fought other times, Appellant had not previously pointed a gun at her. Appellant yanked K.G. up by her jacket, pulled her into the hallway, and told K.G. to call her male friend back. While on the phone with her friend, K.G. told Appellant to stop pointing the gun at her, which alerted the friend Appellant had a gun.
{¶8} At this point, Appellant wanted to leave the duplex, and wanted to take D.D. and K.G. with him. He ordered D.D. to get up, but she wanted to get dressed first. Appellant told D.D. if the police show up, he's killing everyone. Tr. (I) 279.
{¶9} K.G. tried to calm Appellant down. Appellant began to talk about suicide because he felt he had messed up. K.G. eventually went into her bedroom. Appellant followed her, and again asked to have sex. K.G. performed oral sex on Appellant, after which they had sexual intercourse. K.G. testified she did not think she had much choice but to have sex with Appellant because he had a gun and was upset. Both K.G. and Appellant showered and went to bed.
{¶10} K.G. woke up around 5:30 in the morning, and found Appellant fully dressed next to her, pointing the gun at her. Appellant told K.G. he was taking her car and leaving. Appellant had used K.G.'s car in the past, but only with her permission. K.G. told Appellant not to take her car, but Appellant called someone to come and get his car so he could take K.G.'s car.
{¶11} K.G. went to D.D.'s room to try to come up with a plan to stop Appellant from taking her car, but Appellant had taken both women's cell phones, as well as K.G.'s car keys. Appellant began taking his belongings to K.G.'s car. K.G. followed him and sprayed Appellant with mace. Appellant ran back into the apartment. Appellant grabbed D.D. in a headlock, swinging the gun, and yelling, "[T]his bitch just maced me." Tr. (I) 284. Finally, Appellant let D.D. go.
{¶12} K.G. and D.D. tried to help Appellant with the effects of the mace. Appellant again stated if the police showed up, he was killing everyone. Appellant left the apartment, hitting two televisions with the butt of his gun, completely destroying them. Appellant left in K.G.'s car, but returned on foot and retrieved his own car. After Appellant left in his car, K.G. and D.D. went to the police station.
{¶13} Appellant was indicted by the Stark County Grand Jury with aggravated burglary, two counts of rape, aggravated robbery, grand theft of a motor vehicle, two counts of petty theft, telecommunications harassment, menacing by stalking, criminal damaging or endangering, two counts of kidnapping, and aggravated menacing. The State filed a nolle prosequi on the charges of telecommunications harassment and menacing by stalking.
{¶14} The case proceeded to jury trial in the Stark County Common Pleas Court. Appellant testified at trial. He testified when he arrived at the duplex, the door was unlocked, and he had previously entered the duplex without knocking so he went inside. He testified he never pulled a gun out, and K.G. voluntarily had sex with him. He admitted to breaking the televisions, and to taking K.G.'s car. He testified K.G. asked for her keys back, and he said no.
{¶15} The jury found Appellant guilty of aggravated robbery, grand theft of a motor vehicle, two counts of petty theft, aggravated menacing, and criminal damaging or endangering. The jury found Appellant not guilty of the remaining charges. The trial court convicted Appellant in accordance with the jury's verdict, and sentenced him to an aggregate prison term of nine to thirteen and one-half years. It is from the March 17, 2022 judgment of the trial court Appellant prosecutes his appeal, assigning as error:
APPELLANT'S CONVICTIONS WERE AGAINST THE MANIFEST WEIGHT AND SUFFICIENCY OF THE EVIDENCE.
{¶16} In determining whether a verdict is against the manifest weight of the evidence, the appellate court acts as a thirteenth juror and "in reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses, and determines whether in resolving conflicts in evidence the jury 'clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered.'" State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52, 678 N.E.2d 541, quoting State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1983).
{¶17} An appellate court's function when reviewing the sufficiency of the evidence is to determine whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492, paragraph two of the syllabus (1991).
{¶18} At the outset, we note counsel for Appellant made the following argument to the jury in closing argument:
Was there a theft of the car? Yes, absolutely. You heard the evidence. He's guilty of stealing that car. He's guilty of stealing those cell phones. He's guilty of aggravated menacing. Absolutely, 100 percent. It's your duty to return guilty verdicts on those counts. Your duty, ladies and gentlemen.
{¶19} Tr. (II) 208-09.
{¶20} Counsel concluded his closing argument as follows:
Ladies and gentlemen, on the rape charges, kidnapping charges, aggravated burglary, aggravated robbery not guilty. That's your duty. Return verdicts of not guilty on those charges. The other charges you must find him guilty.
{¶21} Tr. (II) 211.
{¶22} Appellant first argues the judgment of conviction of aggravated robbery, grand theft of a motor vehicle, and petty theft of the cell phones is against the manifest weight and sufficiency of the evidence.
{¶23} Aggravated robbery is defined by R.C. 2911.01(A)(1):
(A) No person, in attempting or committing a theft offense, as defined in section 2913.01 of the Revised Code, or in fleeing immediately after the attempt or offense, shall do any of the following:
(1) Have a deadly weapon on or about the offender's person or under the offender's control and either display the weapon, brandish it, indicate that the offender possesses it, or use it[.]
{¶24} Appellant's aggravated robbery conviction was predicated on grand theft of K.G.'s car, as well as the petty theft of the cell phones. R.C. 2913.02 defines the theft offenses as follows:
(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either the property or services in any of the following ways:
(1) Without the consent of the owner or person authorized to give consent[.]
{¶25} Appellant argues he had used K.G.'s car in the past, and had a reasonable belief he could use the car on the day in question, despite the fact the argument between the two led to him being maced by K.C. He argues he did not have intent to deprive her of the car, as he returned the car the same day. He argues similarly he did not intend to deprive K.G. and D.D. of their cell phones. He argues based on his testimony at trial, he never threatened anyone with a gun and never took the gun out, despite having it on his person.
{¶26} However, both K.G. and D.D. testified Appellant brandished the gun off and on throughout the time he spent in the apartment, threatening to kill everyone if the police arrived. K.G. testified while she had allowed Appellant to use her car in the past, he always had specific permission, and on this occasion, she expressly told him not to take her car. Appellant admitted he refused to give the keys back to K.G. upon her request, and also admitted on cross-examination he took both cell phones. Based on the testimony of the two women Appellant threatened to kill everyone if the police came to the duplex, the jury could reasonably infer he took the cell phones with an intent to deprive D.D. and K.G. of their cell phones in order to prevent them from calling the police. Further, as noted earlier, defense counsel told the jury in closing argument it was their duty to convict Appellant of petty theft of the phones and grand theft of the automobile. We find the judgment convicting Appellant of aggravated robbery, grand theft of the automobile, and two counts of petty theft of the phones was supported by sufficient evidence, and was not against the manifest weight of the evidence.
{¶27} Appellant next argues the jury lost its way by finding him not guilty of some charges, while guilty of others. He argues if the victims were not to be believed on the most serious offenses of rape, kidnapping, and aggravated burglary, they could not be believed with regard to the remaining charges.
{¶28} "The several counts of an indictment containing more than one count are not interdependent and an inconsistency in a verdict does not arise out of inconsistent responses to different counts, but only arises out of inconsistent responses to the same count." State v. Lovejoy, 79 Ohio St.3d 440, 683 N.E.2d 1112 (1997), at paragraph one of the syllabus. This Court has previously held an inconsistent verdict may be a result of leniency and compromise by the jurors, rather than a result of jury confusion. State v. Fraley, 5th Dist. Perry No. 03CA12, 2004-Ohio-4898, ¶ 15, citing United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984).
{¶29} In addition, the jury is free to believe all, part, or none of each witness's testimony. State v. Strader, 5th Dist. Stark No. 2021CA00152, 2022-Ohio-4470, ¶ 77. In the instant case, the jury could have believed the testimony of K.G. and D.D. regarding the counts on which Appellant was convicted, while disbelieving K.G.'s testimony regarding her consent to sex with Appellant with regard to the rape charges, and disbelieving the women's testimony they were held in the duplex by Appellant against their will and were not free to leave as to the kidnapping charges.
{¶30} Appellant argues the jury lost its way in believing D.D. and K.G. were in fear during the encounter, and therefore his conviction of aggravated menacing was against the manifest weight of the evidence. Aggravated menacing is defined by R.C. 2903.21:
(A) No person shall knowingly cause another to believe that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other person's immediate family. In addition to any other basis for the other person's belief that the offender will cause serious physical harm to the person or property of the other person, the other person's unborn, or a member of the other
person's immediate family, the other person's belief may be based on words or conduct of the offender that are directed at or identify a corporation, association, or other organization that employs the other person or to which the other person belongs.
{¶31} Both K.G. and D.D. testified Appellant waved his gun around, pointed the gun at K.G. more than once, and threatened several times to kill everyone if the police came to the scene. K.G. testified Appellant had never brandished a gun in the past in front of her, and both she and D.D. were afraid. D.D. testified after he was maced, Appellant put her in a headlock, still waving the gun around. D.D. testified she was in fear for her life. Again, we note in closing argument counsel for Appellant conceded Appellant was "absolutely, 100 percent" guilty of aggravated menacing. We find the judgment convicting Appellant of aggravated menacing was supported by sufficient evidence, and was not against the manifest weight of the evidence.
{¶32} Appellant was also convicted of criminal damaging or endangering, in violation of R.C. 2909.06:
(A) No person shall cause, or create a substantial risk of physical harm to any property of another without the other person's consent: (1) Knowingly, by any means[.]
{¶33} Appellant argues he did not break the televisions knowingly, as he was in pain and discomfort from being maced, and lost control of his ability to make a knowing decision.
{¶34} The mental state of "knowingly" is defined by R.C. 2901.22(B):
(B) A person acts knowingly, regardless of purpose, when the person is aware that the person's conduct will probably cause a certain result or will probably be of a certain nature. A person has knowledge of circumstances when the person is aware that such circumstances probably exist. When knowledge of the existence of a particular fact is an element of an offense, such knowledge is established if a person subjectively believes that there is a high probability of its existence and fails to make inquiry or acts with a conscious purpose to avoid learning the fact.
{¶35} Appellant did not testify at trial he was unaware of what he was doing when he broke the televisions. Rather, Appellant testified he was angry and he snapped. He apologized later to the women for taking the car and for breaking their televisions. We find sufficient evidence to support the jury's finding Appellant knowingly broke the televisions, and the judgment is not against the manifest weight of the evidence.
{¶36} The assignment of error is overruled. The judgment of the Stark County Common Pleas Court is affirmed.
By: Hoffman, P.J. Wise, J. and Delaney, J. concur