State v. Blackburn

186 N.E.3d 892

STATE of Ohio, Plaintiff-Appellee,

v.James A. BLACKBURN, Defendant-Appellant.

NO. 8-21-25

Court of Appeals of Ohio, Third District, Logan County.

Date of Decision: March 28, 2022

William T. Cramer, Westerville, for Appellant.

Eric C. Stewart, for Appellee.

SHAW, J.

{¶1} Defendant-Appellant, James A. Blackburn ("Blackburn"), appeals from the June 4, 2021 judgment entry of sentencing of the Logan County Court of Common Pleas following a jury trial.

Facts and Procedural History

{¶2} On December 8, 2020, Blackburn was indicted in a four-count indictment on Count One, having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree; Count Two, felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree, with a firearm specification; Count Three, improperly discharging a firearm at or into a habitation in violation of R.C. 2923.161(A)(1), a felony of the second degree, with a firearm specification and a specification for forfeiture of a weapon; and Count Four, using weapons while intoxicated in violation of R.C. 2923.15(A), a misdemeanor of the first degree. Blackburn entered a plea of not guilty and the case proceeded to a two-day jury trial on April 19-20, 2021. The jury found Blackburn guilty as charged in the indictment. The following is a summary of the testimony and evidence that was presented at trial.

{¶3} During trial, the testimony revealed Blackburn's charges stemmed from a shooting incident which occurred on November 23, 2020, involving Blackburn and his daughter, Sheila Whatley, and his son-in-law, Jeff Whatley. At the time of the incident, Blackburn was living in a camper behind the rear of the Whatley's house. One of the conditions for him to live there was not drinking whiskey because he is not able to control himself and there may be violent behavior.

{¶4} Both victims testified for the State. Jeff testified that after he arrived home from work shortly before 10:00 p.m. on November 23, Blackburn called him about 10:02 p.m. on the phone and wanted him to come over to his camper to have a beer with him. When Jeff told Blackburn he sounded drunk on the phone, Blackburn told him he had drank eight or nine beers. Jeff said he would come over after he finished his dinner. Jeff testified that, as he stepped into the camper, he saw Blackburn sitting at the kitchen table with two handguns on the table. Jeff said that when he asked what the guns were for, Blackburn responded, "we're going to have a heart-to-heart talk." (Trial Tr., Vol. I, p. 39). Jeff testified that, at that point, he felt his life was in danger and when he turned to run out the door, Blackburn stood up, said "come back here," and pointed the gun at him. (Id. at 41-42, 61-62).

{¶5} Jeff further testified that he heard a gunshot while he was running toward his house and heard another shot. Jeff then woke up Sheila and told her that "her father was shooting at [him]." (Id. at 43). He and Sheila were in the dining room when multiple shots were fired into the house. Jeff testified he believed Blackburn was intoxicated.

{¶6} Sheila testified that on the night of the incident, she was sleeping when Jeff woke her up to tell her that her dad was shooting at him. Sheila, who heard Blackburn yelling and screaming profanity at Jeff while outside the back kitchen door, called out for him to please stop. Sheila told Jeff he needed to go out the front door while she called the Sheriff. Sheila testified that while she was on the phone with the Sheriff's office, she heard the glass in the kitchen door shatter and she was sure then that Blackburn was shooting. She likewise testified that she heard multiple shots being fired. She testified that she later found an empty bottle of Seagram's 7 in Blackburn's camper.

{¶7} Patrol Sergeant John Godwin ("Patrol Sergeant Godwin") of the Logan County Sheriff's Office testified that he and two Sheriff's Deputies were dispatched to the Whatley's residence to respond to a call about Blackburn shooting into that residence. After their arrival, one of the Deputies looked through the window of Blackburn's camper and saw what appeared to be Blackburn reloading a weapon. Blackburn eventually stepped out onto the porch after being ordered to come out of the camper, and as they approached to take him into custody, Blackburn attempted to strike one of the Deputies. According to Patrol Sergeant Godwin, Blackburn had a very strong odor of alcohol on his person, his language was horrible, and he was agitated and verbally abusive to them.

{¶8} Blackburn was then arrested, and because of his intoxicated state, he was not interviewed until the next night. That interview was conducted by Patrol Sergeant Godwin and one of the responding Deputies and was recorded. The recording of the interview was played for the jury.

{¶9} In the interview, Blackburn stated that on the night of the incident, he started drinking Seagram's 7 whiskey around 4:30 p.m. and then at 10:00 or 10:15 p.m., he remembered finding himself outside firing his revolver. He stated he gets "ziggity boo" when drinking whiskey and then explained that means he gets goofy and has blackouts. (Trial Tr., Vol. I, p. 145, 154). Although Blackburn did not remember inviting his son-in-law out to his camper to have a beer with him that night, the call history contained in Blackburn's cellular telephone indicated that he made a call to Jeff at 10:02 p.m.

{¶10} Also during the interview, Blackburn admitted owning two guns, and further admitted to taking his revolver outside and firing it just to see if the bullets would still fire. He thought he fired all six rounds in the revolver.

{¶11} Detective Shawn McIntire of the Logan County Sheriff's Office also testified for the State. The Detective identified multiple photos of inside Blackburn's camper, including one that showed the two handguns lying on the kitchen seat. The Detective also identified four bags containing the spent bullet projectiles that were recovered from the scene: "One inside the cabinet, one on the floor, one inside the dishwasher, and one in the door handle—doorknob." (Trial Tr., Vol. I, p. 110). The Detective also found over five spent bullet casings from Blackburn's revolver. A Logan County Sheriff's Deputy testified that he test fired the revolver.

{¶12} As noted earlier, the jury returned a verdict of guilty on all charges.

{¶13} At the subsequent sentencing hearing held on June 3, 2021, the parties agreed that the offenses of felonious assault and improper discharging a firearm at or into a habitation would merge, and the prosecution elected to recommend a sentence on the improper discharge offense. The trial court then sentenced Blackburn to a non-mandatory indefinite prison term with a minimum term of six years and a maximum prison term of nine years on Count Three, improperly discharging a firearm at or into a habitation, with three years for the firearm specification. For having weapons under disability, the trial court sentenced Blackburn to thirty-six months and to one hundred eighty days for using weapons while intoxicated, both to be served concurrently to Count Three.

{¶14} Notably, in addition to the foregoing sentence, the trial court also sentenced Blackburn to a concurrent six-year prison term for Count Two, felonious assault, "[i]n the alternative." (June 4, 2021 Judgment Entry/Sentencing Prison at 1-2, Sentencing Tr. at 9). And in relation to this "alternative" sentence, the trial court also sentenced Blackburn to three years for the firearm specification as to Count Two, felonious assault, to be served consecutively to the sentences imposed on both Count Three and its firearm specification, for an aggregate prison term of twelve to fifteen years.

{¶15} Blackburn now appeals, asserting the following assignments of error for our review.

ASSIGNMENT OF ERROR NO. 1

APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS BECAUSE COUNSEL FAILED TO PURSUE JURY INSTRUCTIONS ON VOLUNTARY INTOXICATION AS A DEFENSE TO APPELLANT'S FELONY CHARGES.

ASSIGNMENT OF ERROR NO. 2

APPELLANT WAS DEPRIVED OF HIS RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE STATE AND FEDERAL CONSTITUTIONS BECAUSE COUNSEL FAILED TO REQUEST JURY INSTRUCTIONS DEFINING VOLITIONAL ACTS.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT IMPROPERLY MERGED FELONIOUS ASSAULT UNDER R.C. 2941.25 BY IMPOSING A CONCURRENT SENTENCE.

ASSIGNMENT OF ERROR NO. 4

THE TRIAL COURT ERRED BY IMPOSING A PRISON TERM FOR THE

FIREARM SPECIFICATION THAT WAS ATTACHED TO THE FELONIOUS ASSAULT COUNT THAT WAS MERGED PURSUANT TO R.C. 2941.25.

First and Second Assignments of Error

{¶16} Blackburn's first and second assignments of error will be addressed together as both claim that Blackburn was deprived of his constitutional rights to effective assistance of counsel.

Legal Standard

{¶17} " ‘Under Ohio law, "a properly licensed attorney is presumed to carry out his duties in a competent manner." ’ " State v. Harvey , 3d Dist. Marion No. 9-19-34, 2020-Ohio-329, 2020 WL 525933, ¶ 57, quoting State v. Beaver , 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, 2018 WL 3116535, ¶ 26, quoting State v. Gee , 3d Dist. Putnam No. 12-92-9, 1993 WL 270995 (July 22, 1993). "For this reason, the appellant has the burden of proving that he or she was denied the right to the effective assistance of counsel." State v. Crawford , 3d Dist. Henry No. 7-20-05, 2021-Ohio-547, 2021 WL 777169, ¶ 17, citing State v. Brown , 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, 2018 WL 1256540, ¶ 42.

{¶18} "In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel's performance was deficient and (2) that this deficient performance prejudiced the defendant." State v. McWay , 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, 2018 WL 4293346, ¶ 24, citing Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80...