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Three from the Second, Part II

I mentioned last week that there were three recent decisions out of the 2nd District that are worth looking at, and discussed one of them.  I'll hit another one today.

That case is State v. Gardner, in which the defendant had been convicted of aggravated burglary.  The events leading up to the crime started out innocently enough:

The events giving rise to this matter began on Monday, April 25, 2005, when Ebony Lee phoned Gardner and asked to buy some marijuana from him.

Things went to hell in a hurry after that, though, with the defendant forcing his way into the house and beating the victim, then returning a little while later, breaking the door down, and firing several shots at the victim.

The defendant asserted various and sundry claims of error, all of which were dismissed out of hand, except one.  The aggravated burglary statute essentially prohibits breaking into a premises with the "purpose to commit any criminal offense."  That criminal offense could be anything, of course, from theft to domestic violence to murder.  The trial judge hadn't given the jury any instructions on what the lesser offense might be, and the appeals court held that was plain error. 

Why?  The state has to prove every element of the offense beyond a reasonable doubt.  Proving the underlying criminal offense is an element of aggravated burglary.  If the underlying offense isn't specified, there's a possibility that the jurors might agree that one was committed, but disagree as to which one it was.  If the jurors don't unanimously agree on which underlying offense was committed, that means they haven't unanimously found an element of the offense, and that's a denial of due process.

I'm not sure I agree with the court's reasoning, especially under the facts in this case, although it should be noted that the Ohio Jury Instructions mandates that "the court must instruct the jury on the elements of the underlying criminal offense together with the meaning of pertinent words and phrases."  There's a case to the contrary out of the 8th District, but the instruction by the judge was more complete than in Gardner.  There's only one other case on the subject, and I wouldn't be surprised to see the issue go to the Supreme Court.  But if you've got an aggravated burglary case, it's a must read.

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