[Cite as State v. Boyd, 2015-Ohio-5116.]

IN THE COURT OF APPEALS OF OHIO 

TENTH APPELLATE DISTRICT 

State of Ohio, : 

 Plaintiff-Appellee, : No. 14AP-961 

 (C.P.C. No. 13CR-4830) 

v. : 

 (REGULAR CALENDAR) 

Alex Boyd, : 

 Defendant-Appellant. : 

 

D E C I S I O N 

Rendered on December 10, 2015 

 

Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for 

appellee. 

Timothy Young, Ohio Public Defender, and Valerie Kunze, for 

appellant. 

 

APPEAL from the Franklin County Court of Common Pleas 

BRUNNER, J. 

{¶ 1} Defendant-appellant, Alex Boyd, appeals from a judgment of the Franklin 

County Court of Common Pleas, rendered on October 24, 2014, sentencing Boyd to a total 

of 14 years in prison following a jury verdict finding him guilty of aggravated burglary, 

rape, kidnapping, and abduction, each with gun specifications. Boyd now appeals arguing 

that the trial court's instructions were plainly erroneous in that they failed to 

appropriately instruct the jury on the unanimity requirement. Finding no merit in Boyd's 

arguments, we affirm the judgment of the trial court. 

I. FACTS AND PROCEDURAL HISTORY 

{¶ 2} On September 12, 2013, a Franklin County Grand Jury returned an 

indictment charging Boyd with aggravated burglary, rape, kidnapping, and abduction, 

each with firearm specifications. Shortly thereafter, on September 16, 2013, Boyd pled 
No. 14AP-961 2 

not guilty. On April 14, 2014, in a separate action, case No. 14CR-1947, Boyd was charged 

with possessing a weapon while under disability because of a prior felony offense. Boyd 

waived a jury in case No. 14CR-1947 on September 22, 2014. Shortly after the start of the 

jury trial in this case, the trial court joined this case and case No. 14CR-1947 for the 

purposes of trial. 

{¶ 3} After holding voir dire on September 22, and the morning of September 23, 

2014, the trial court commenced a jury trial on the aggravated burglary, rape, kidnapping, 

and abduction charges on the afternoon of September 23, 2014. The first two fact 

witnesses of relevance to our decision were David Garner and Jeremy Landis, both of 

whom are Columbus Division of Police patrol officers. The two officers testified that they 

were dispatched to an apartment on Roche Drive on September 3, 2013. Once on the 

scene, Officer Garner spoke with Boyd (who arrived just seconds after the police did), 

while Officer Landis spoke with the victim, S.W. Officer Garner reported that Boyd said 

he and S.W. had argued, but their encounter had not resulted in a physical altercation, 

that S.W. had no marks on her, and that he had taken a walk around the block to blow off 

steam. Officer Landis was prevented by Ohio Rules of Evidence disallowing hearsay from 

testifying about what S.W. told him, but he testified that he saw signs of forced entry. 

{¶ 4} Detective James Ashenhurst, lead detective on the case, also testified. He 

also explained that he found signs of forced entry and identified photographs showing a 

dented and warped door to S.W.'s patio. He recounted how he recovered a Glock 22-

handgun stashed beneath some stairs near S.W.'s apartment and expressed the opinion 

that, owing to a lack of cobwebs and dirt on the weapon, it had not been there long. The 

Glock 22 was equipped only with a trigger safety to prevent accidental discharge by means 

other than a trigger pull. However, a trigger pull of only five and one-half pounds would 

both disengage the safety and fire the weapon. When it was recovered the gun had a live 

round in the firing chamber. Detective Ashenhurst additionally testified that he looked 

for and failed to find evidence that Boyd was a resident of a Roche Drive apartment, but 

he admitted that the apartment as a whole was relatively bare. 

{¶ 5} The next relevant witness to our review was the victim, S.W. She testified 

that she and Boyd had been boyfriend and girlfriend at one time, but that on July 4, 2013 

she moved without Boyd from Toledo to Columbus. After staying with her aunt until 
No. 14AP-961 3 

approximately the end of July, she moved into an apartment on Roche Drive. Boyd did 

not live with her and did not have a key to the apartment on Roche Drive, but she 

sometimes let Boyd visit her, even allowing him to stay overnight. When Boyd stayed the 

night, he would sometimes bring various items with him and would also sometimes leave 

those things behind. When the police arrived after the incident, for instance, S.W. 

testified that Boyd had shoes at her apartment, some bottles of cologne, a few items of 

clothing, a GPS, an amplifier, and some jewelry. 

{¶ 6} S.W. testified that the prelude to the incident began with a trip to the 

grocery store on August 31, 2013. She and Boyd went to the store and stayed until shortly 

after midnight because, on September 1, S.W.'s food stamp card would become active and 

groceries could be purchased. S.W. then returned to Roche Drive. Boyd did not come 

with her. On the evening of September 1, 2013, at around 5:30 p.m., Boyd telephoned 

S.W. and informed her that he had bought her something at the mall. S.W. joined Boyd at 

Kay Jewelers in the mall and took possession of a necklace Boyd had bought her, and they 

left the matching ring to be resized. S.W. returned to Roche Drive without Boyd. 

{¶ 7} Some interval of time passed after returning from the mall, but while it was 

still daylight, S.W. looked up from cooking to discover that Boyd had somehow managed 

to climb onto her elevated back porch and was asking to be let in so they could talk. 

Initially, she testified that she found it funny that he had somehow managed to climb up 

onto her porch and that she felt secure in the knowledge that he could not get in since she 

was in the habit of wedging her door shut with a heavy chair. So she went upstairs and 

changed clothes. When she came back down to finish cooking, Boyd kicked in the door. 

{¶ 8} S.W. testified that Boyd fought her inside the apartment, slapped her, 

choked her to the point of unconsciousness several times, and dragged her upstairs by her 

hair. Upstairs they fought more. At one point, Boyd pulled out a gun and threatened her 

with it. After a time, Boyd gave the gun to her and told her to kill him if she wanted to 

leave; but, S.W. found that she could not bring herself to shoot him. After that, Boyd took 

the gun back and began stripping off S.W.'s clothes while S.W. attempted to push him off 

with her legs. When Boyd began to undress himself, S.W. grabbed his genitals hard in an 

attempt to control him but eventually let go. Whereupon, Boyd again choked her to 

unconsciousness, put her on the bed, and, when she regained consciousness, removed the 
No. 14AP-961 4 

remainder of her clothing. Boyd then stuck the muzzle of the gun in her vagina. After a 

time he pulled the gun out, licked it, and began to rape S.W. with his penis. These events 

took place over what was, to S.W.'s perception, an unknown interval of time during which 

Boyd would not permit S.W. to leave the room and kept the gun with him, even while 

sleeping. However, at some juncture S.W. was able to telephone the police. 

{¶ 9} The final two witnesses were experts. Monica Robinson was a nurse at 

Riverside Hospital who saw S.W. on September 4, 2013 following the assault and rape. 

She testified that she noted no injuries on S.W. either internal or external, but that this 

was not inconsistent with being slapped, choked, and vaginally penetrated a few days 

prior. Robinson did note a white fluid in S.W.'s vagina which could either have been 

S.W.'s own fluid or the remnants of another person's fluid. 

{¶ 10} Raymond Peoples, a DNA analyst for the Ohio Bureau of Criminal 

Investigation, also testified. The parties stipulated that DNA from both the hand grip and 

the barrel of the gun belonged to both Boyd and S.W., and that Boyd's sperm was found in 

S.W.'s vagina. Peoples then testified that sperm's half-life means that Boyd's sperm was 

collected from S.W.'s vagina within 72 hours of sex. He also confirmed that S.W. and 

Boyd were equal contributors to DNA on the gun and that the findings are consistent with 

the gun coming in contact with S.W.'s vaginal secretions and with Boyd licking it. 

{¶ 11} Following deliberations, on September 30, 2014, the jury convicted Boyd on 

all counts and also found each specification. Based on the evidence at trial and the 

stipulation of the parties to the underlying disqualifying offenses, the trial court found 

Boyd guilty of possessing a weapon while under disability. Thereafter, on October 22, 

2014, the trial court held a sentencing hearing. The trial court merged the abduction and 

kidnapping offenses and ordered Boyd to serve four years on each of the counts, 

aggravated burglary, rape, and kidnapping, as well as three years on each of the gun 

specifications. It sentenced Boyd to concurrent terms of imprisonment for rape and 

kidnapping (including associated specifications) but ordered Boyd to serve those 

sentences consecutively with the sentence imposed for aggravated burglary and the gun 

specification for that sentence. Thereby the trial court imposed a total term of 

imprisonment of 14 years in case No. 13CR-4830. It permitted Boyd to serve that sentence 
No. 14AP-961 5 

concurrently with the one year that was imposed on the weapon under disability offense 

in case No. 14CR-1947. 

II. ASSIGNMENT OF ERROR 

{¶ 12} Boyd asserts a single assignment of error: 

Because the jury instructions did not require unanimity on 

Alex Boyd's convictions for aggravated burglary and 

kidnapping, his convictions were in violation of his right to 

jury unanimity and due process of law under the Fourteenth 

Amendment to the United States Constitution, and Section 10, 

Article I of the Ohio Constitution, and Crim.R. 31(A). 

III. DISCUSSION 

{¶ 13} Boyd's counsel did not object to the unanimity jury instructions at trial. "[A] 

party forfeits error concerning jury instructions if the party fails to object before the jury 

retires. State v. Jackson, 92 Ohio St.3d 436, 444, 2001-Ohio-1266." State v. Martin, 10th 

Dist. No. 07AP-362, 2007-Ohio-7152, ¶ 48. "Plain errors or defects affecting substantial 

rights may be noticed although they were not brought to the attention of the court." 

Crim.R. 52(B). See also Martin at ¶ 49. 

First, there must be an error, i.e., a deviation from a legal rule. 

* * * United States v. Olano (1993), 507 U.S. 725, 732 * * * 

(interpreting Crim.R. 52[B]'s identical federal counterpart, 

Fed.R.Crim.P. 52[b]). Second, the error must be plain. To be 

"plain" within the meaning of Crim.R. 52(B), an error must be 

an "obvious" defect in the trial proceedings. * * * [S]ee, also,

Olano, 507 U.S. at 734 * * * (a plain error under 

Fed.R.Crim.P. 52[b] is " 'clear' or, equivalently, 'obvious' " 

under current law). Third, the error must have affected 

"substantial rights." We have interpreted this aspect of the 

rule to mean that the trial court's error must have affected the 

outcome of the trial. 

Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68. 

{¶ 14} In most cases, a general instruction on the requirement that the jury decide 

the case unanimously is sufficient. State v. Johnson, 46 Ohio St.3d 96, 104 (1989) 

overruled in part not relevant here by State v. Jenks, 61 Ohio St.3d 259, 282 (1991). 

However, the Supreme Court of Ohio has also recognized that: 

[I]f a single count can be divided into two or more "distinct 

conceptual groupings," the jury must be instructed specifically 

that it must unanimously conclude that the defendant 
No. 14AP-961 6 

committed acts falling within one such grouping in order to 

reach a guilty verdict. United States v. Gipson (C.A. 5, 1977), 

553 F.2d 453, 458; accord United States v. Beros, [833 F.2d 

455,] 461 [(3d Cir.1987)] (where there appears a possibility of 

jury confusion in light of the allegations made and the statute 

charged, an augmented general instruction may be necessary 

to ensure that the jury understands its duty to unanimously 

agree to a particular set of facts); United States v. Echeverry

(C.A. 9, 1983), 698 F.2d 375, modified (1983), 719 F.2d 974, 

975; United States v. Payseno (C.A. 9, 1986), 782 F.2d 832, 

837; but, see, Berrisford v. Wood (C.A. 8, 1987), 826 F.2d 

747, 754. 

Johnson at 104-05. Yet, the Supreme Court also has explained: 

In determining whether the state has impermissibly interfered 

with a defendant's Crim.R. 31(A) right to juror unanimity and 

the due process right to require that the state prove each 

element of the offense beyond a reasonable doubt, the critical 

inquiry is whether the case involves "alternative means" or 

"multiple acts." 

" ' "In an alternative means case, where a single offense may 

be committed in more than one way, there must be jury 

unanimity as to guilt for the single crime charged. Unanimity 

is not required, however, as to the means by which the crime 

was committed so long as substantial evidence supports each 

alternative means. In reviewing an alternative means case, the 

court must determine whether a rational trier of fact could 

have found each means of committing the crime proved 

beyond a reasonable doubt. 

" ' "In multiple acts cases, on the other hand, several acts are 

alleged and any one of them could constitute the crime 

charged. In these cases, the jury must be unanimous as to 

which act or incident constitutes the crime. To ensure jury 

unanimity in multiple acts cases, we require that either the 

State elect the particular criminal act upon which it will rely 

for conviction, or that the trial court instruct the jury that all 

of them must agree that the same underlying criminal act has 

been proved beyond a reasonable doubt." ' " (Footnote 

omitted.) State v. Jones (2001), 96 Hawaii 161, 170, 29 P.3d 

351, quoting State v. Timley (1994), 255 Kan. 286, 289-290, 

875 P.2d 242, quoting State v. Kitchen (1988), 110 Wash.2d 

403, 410, 756 P.2d 105. 
No. 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 "distinct conceptual groupings" when the testimony by 

S.W. vividly described a single, drawn-out continuum of violence. S.W. testified in 

relevant part: 

Okay. Starting from the beginning, I come in the house. I go in 

the kitchen start cooking. He's on the back patio wanting to 

get in. You know, first I find it funny. I'm laughing about it. 

He's actually obviously very serious. 

I go upstairs. I change my clothes. Radio's on. I ignore him. I 

go back downstairs. Still cooking. He's still out there I'm like, 

you know, he's not going to leave. 

* * * 

Q. At that point in time are you able to hear or observe 

anything of his demeanor? 

A. Yes. 

Q. Tell me what you heard and what you observed. 

A. He was getting even more angrier and angrier. The kicks 

got stronger and stronger as I noticed he was - - I could tell, 

you know, you can kick the door and maybe it won't budge, 

keep kicking it. And it starts wiggling a little bit. Then you 

kind of get scared like, oh, snap. 

Well, at that point it was, like, that last kick rushed the door. 

And the chair actually kind of - - it didn't open the door all the 

way. But it gave him just enough room to kick and then kick 

again and get in the door. 

From then I'm in the kitchen. He grabs me. I'm screaming. All 

the yelling. I don't know. All the yelling. I know we were 

screaming at each other. And I find myself in the living room. 
No. 14AP-961 8 

Q. How did you find yourself in the living room? 

A. He's grabbing me. I'm in the living room. We're fighting as 

far as like I'm screaming at him. I'm telling him to get off of 

me. He's not getting off of me. I'm screaming Alex. I'm telling 

him get off of me. Leave me alone. Stop. He's smacking in the 

face. I tell him to stop smacking me. Get off of me. He's saying 

something to me. I'm screaming. He chokes me with his arm. 

With his right arm he puts it around my neck. I pass out fast. I 

get back up. I'm screaming. I'm crying. At that point I'm mad. 

I'm ready to fight. We're screaming at each other. I don't know 

what I'm saying to him. I don't know what he's saying to me. 

He's fighting me. I tell him to get off of me. Get off of me. And 

I know I'm getting smacked in the face. I'm getting madder. I 

go grab the rice that's on the stove from cooking because it's 

hot. I use that as my something I think he's going to leave me 

alone and get off of me. So I have the rice. I'm moving it 

around in my hand. I'm shaking. The rice pan is shaking. I'm 

trying to throw it at him. I'm scared to throw it at him so using 

it making him think I'm going to throw it at him and hit him 

with it. 

I'm going around the table chasing him. Leave me alone. Get 

away. Get out. The more I move with the rice to try to throw it 

at him, the more rice pan - - the more the rice comes out the 

pan. It doesn't hit him. Scared to hit him with it. He thinks it's 

funny. He thinks this is a game. He's laughing. I'm screaming. 

I'm crying. Get out. Get out. Leave me alone. The rice is gone. 

There's no more rice in the pan. 

Now I feel like I'm stuck. He's smacking me. Then I want to 

get out. He's not letting me out. He tells me to calm down. I 

can't calm down. So I grab my chair. I want to try to get out. 

So I feel like I'm trapped in this room. I can't go anywhere. So 

I take the chair attempt to throw it at the window. Throw it at 

this window that's in the living room. He chokes me with his 

right arm. I fall to the ground. I get back up. Charge at him. 

He smacks me. Chokes me again. 

He drags me up the steps by my hair. I'm going up the steps. 

Get off me. Get off of me. Get off of me. As I go up the steps I 

don't know what he's saying. We're going up the steps. I'm 

screaming. Find myself in the bedroom. We're in the 

bedroom. We're arguing. We're fighting. The door's shut. 
No. 14AP-961 9 

I'm standing by the window. The blinds are fully blind. So as 

he's smacking me, I'm trying to fight him. So I grab the blinds 

down try to fight him with the blinds. I'm swinging the blinds. 

Not hitting him. He's telling me if you hit me I'm gonna kill 

you. I'm gonna hurt you. I'm scared to hit him back. So I'm 

swinging making him think that I'm gonna hit him with it. 

Making him think it's gonna stop. That doesn't work. The 

blinds are broken. 

Everything's tore up. I take the radio speaker. I break it by 

being so angry that I snatched it off the thing. And it 

immediately came out of the cord. I go to try hit him with it. 

Alex then has his gun. He's pointing it at me screaming if I 

want to get out, you're gonna have to kill me, or if you want to 

get out vice versa. 

Then I'm standing by the closet. I'm screaming. I don't know 

what to do. I'm afraid. I'm scared. I think he's gonna shoot me 

so I'm telling him don't shoot me. At that point he has the 

authority. And there's no more fighting back for me because 

there's a loaded gun in front of my face. 

Alex then tells me we have tattoos, we had tattoos,1 he owned 

me. And, you know, if I wanted to go anywhere do anything 

I'm going in a body bag. So I'm scared. I feel like he's gonna 

shoot me. He tells me that if I want to get out, I have to kill 

him. So at that point he gives me the gun. It's shaking. I'm 

shaking. I have it in my hand. I'm afraid. He's hitting me. I got 

the gun. I don't have enough fear to actually shoot it. So I'm 

pointing it at him telling him to leave me alone. 

Eventually he gets the gun back. We're fighting. We're on the 

bed now. He's trying to take my clothes off of me He's 

screaming "I love you. I'm sorry. I want to be with you." 

We're fighting. As he's trying to get my clothes off of me, I'm 

using my legs. So to try to make it so that he gets off of me so 

I'm choking him with my legs. Eventually when he goes to pull 

out his penis I grab it. I have it. Then I feel like I'm in power. 

I'm in control. I take his - - I'm holding his penis. I get off the 

bed. Open the - - I have him, I'm screaming at him. I'm 

opening the door and I'm in the hallway. I'm yelling 

something at him. He's just showing as if he's hurting because 

I'm grabbing his stuff. 

 

1 Boyd has S.W.'s first name tattooed on his neck and she has his initials on her arm. 
No. 14AP-961 10 

And we're in the - - we're by the rails where you come up at 

the steps between the bathroom and going downstairs. I'm so 

angry I'm screaming at him. And he acts as if he's about to 

pass out because I'm holding his stuff so hard. I told him that 

I was gonna become attachable. It scares me because he's 

about to pass out. 

So I let him go. And instantly, quickly he chokes me. I'm back 

in the room again. The door's shut. And then I'm stuck. I'm 

feeling frustrated. I'm feeling angry. I'm feeling like my life's 

about to end. I don't know what 's about to happen. All I know 

is he's in here. There's a loaded gun in here. He wants to kill 

me. And I don't know what to do. So we're fighting again. 

We're fighting again. 

Finally I'm on the bed. My head is to the bottom of the bed. 

He's a little bit stronger than me. So we fighting on the bed, 

trying to get my clothes off, telling me that he loves me. 

In the midst of the fight, he gets my clothes off of me. He takes 

his gun. He sticks it in my privacy. And he takes it out. He 

licks it. He tells me that my privacy's that's why he loves me. 

We're fighting. I'm hurting. I'm screaming get off of me, get 

off of me the whole time. He tells me to shut up. 

From the midst of us fighting I end up on the other end of the 

bed. My clothes are off. He's having sex with me. I told him 

don't let him me rape me. He says I know. Don't cry. Please 

don't cry. I love you. Please don't cry. 

Get off of me then. Get off of me then. If you love me you 

wouldn't do this to me. He goes, "I do love you. Don't cry. Oh, 

I'm about to come." He comes. 

Still in the room. Things have kind of calmed down. Although 

I'm still scared shitless because I don't know what's going to 

happen. He's kind of in almost as if he got his cool back where 

he's not angry anymore after sex. We're in the room. Once it's 

over I think, you know, now he got what he wants everything's 

cool. You know, everything's not cool. 

I have to stay in the room. He's making me stay in the room 

now. I can't get out. I can't go anywhere. So I'm stuck in the 

room. Every time I try to get out, he goes to either try to choke 

me, try to make me pass out, tell me I ain't going nowhere, tell 

me he's gonna shoot me, he's gonna kill me. So I'm struck in 

this room. I can't do anything. 
No. 14AP-961 11 

* * * 

I can't get out the window. The window's high up. I have 

nothing to throw out the window to to get out. I've already 

broken everything in the room that can be broke. 

* * * 

Eventually after everything calms down, this is a long process, 

we go to sleep. Alex is fine. He has his gun. "Don't move. Don't 

act crazy." I didn't do anything. I didn't want to get shot. I 

didn't want to lose my life. 

(Tr. Vol. II, 402-11.) 

{¶ 16} In fact, even when the prosecutor attempted to clarify the timeline by 

questioning, S.W. was unable to be more specific: 

Q. So it's clear that whole situation you just told me, is that 

what happened Sunday night when he kicked the door in? 

A. This is from the time the door got kicked in to the time that 

the police came. 

Q. Okay. Okay. So in here we have a Monday. What you were 

just telling us, are you saying that's what happened? 

A. Yes. And the police, the detectives are registering days. My 

mind is registering the whole situation of what happened. In 

my mind there's not no dates going past. There's not no 

months going past. There's no nothing going past of what I'm 

going through in the room, in the house, in the situation. No 

time. I don't have no recollection of any time span of nothing. 

(Tr. Vol. II, 412-13.) In short, while it is true that Boyd committed multiple criminal acts 

toward S.W. in the time that he held her within the apartment for more than a day, as 

S.W.'s testimony demonstrates, it is difficult to see how these offenses could be divided 

into "distinct conceptual groupings" in the same manner which, for instance, a robbery 

spree might be divided by targets or dates. 

{¶ 17} We have previously decided a case somewhat factually similar to this. In 

State v. Marrero, 10th Dist. No. 10AP-344, 2011-Ohio-1390, ¶ 3, a defendant and his 

girlfriend had been fighting verbally. When the girlfriend picked up the defendant in the 

car, the defendant began to hit her and would not allow her to leave the car. Id. at ¶ 4. He 
No. 14AP-961 12 

forced her into the backseat, choked her, and began driving while continuing to punch 

her. Id. She managed to escape when the defendant stopped at a stoplight. Id. The 

defendant chased her and attempted to drag her back to the car by her neck and hair but 

was deterred in this attempt by the intercession of passersby. Id. at ¶ 4-5. Although in that 

case there were (as there are here) multiple criminal acts in the course of conduct, it was a 

single course of conduct and neither of the offenses with which the defendant was charged 

(domestic violence, in violation of R.C. 2919.25, and abduction, in violation of R.C. 

2905.02) could cogently be further "divided into two or more 'distinct conceptual 

groupings.' " Johnson at 104; Marrero at ¶ 96-101. We explained, " '[j]urors need not 

agree on a single means for committing' the offense, because different 'jurors may be 

persuaded by different pieces of evidence, even when they agree on the bottom line. 

Plainly there is no general requirement that the jury reach agreement on the preliminary 

factual issues which underlie the verdict.' " Id. at ¶ 100, quoting State v. McKnight, 107 

Ohio St.3d 101, 2005-Ohio-6046, ¶ 228, citing Schad v. Arizona, 501 U.S. 624, 631-32 

(1991); McKoy v. North Carolina, 494 U.S. 433, 449 (1990); State v. Davis, 116 Ohio 

St.3d 404, 2008-Ohio-2, ¶ 186-88. 

{¶ 18} Boyd, in his brief, alleges that the jury could have disagreed about which 

statutory path justified Boyd's conviction for both kidnapping and aggravated burglary. 

That is, in this case, the jury was instructed that they should find Boyd guilty if they found 

that he "knowingly, by force trespassed in an occupied structure when another person 

other than an accomplice of the defendant was present, with purpose to commit therein 

any criminal offense, and the defendant inflicted or attempted to inflict physical harm 

upon another, [S.W.], and/or had a deadly weapon on or about his person or under his 

control." (Emphasis added.) (Jury Instructions, 6.) Boyd argues that the jury should have 

been required to agree upon which of the alternatives was true—inflicted harm or deadly 

weapon. Similarly, the jury was instructed that they should find Boyd guilty if they found 

that he "knowingly and by force removed [S.W.] from the place where she was found or 

restrained her of her liberty for the purpose of facilitating the commission of a felony or 

flight thereafter, to wit: Aggravated Burglary and/or Rape; and/or terrorizing the 

victim and/or engaging in sexual activity with the victim against the victim's will." 

(Emphasis added.) (Jury Instructions, 9.) Again, Boyd argues that the jury should have 
No. 14AP-961 13 

had to agree upon whether Boyd removed and restrained S.W. in order to facilitate crime, 

terrorize, or engage in sexual activity with S.W. against her will. 

{¶ 19} Boyd's arguments, despite attempts to construe them as multiple acts 

arguments, are paradigmatic alternative means arguments. Jurors are permitted to 

disagree about the means by which the offender achieved his own guilt, so long as 

substantial evidence supports each of the possible means and the jury is unanimous as to 

the ultimate result. See, e.g., Fry at ¶ 125-38. Thus, the question is not whether the jurors 

had to agree on the alternatives Boyd raises; they did not. The question is whether 

substantial evidence underlay each of the alternatives. 

{¶ 20} S.W. testified that Boyd raped her with a gun, slapped her, dragged her by 

her hair, and choked her to the point of unconsciousness. In addition, a Glock 22-

handgun was found near the scene without cobwebs and by expert testimony was found to 

have on it both S.W.'s and Boyd's DNA, consistent with her testimony. This evidence 

supports a finding that Boyd possessed and used a deadly weapon, including to inflict 

physical harm upon S.W. See R.C. 2911.11(A)(1) and (2); see also R.C. 2901.01(A)(3) 

(defining physical harm as "any injury, illness, or other physiological impairment, 

regardless of its gravity or duration"); R.C. 2923.11(A) (defining "deadly weapon" in 

relevant part as "any instrument, device, or thing capable of inflicting death, and designed 

* * * for use as a weapon"). 

{¶ 21} Ohio criminal statute provides, "[a] person acts purposely when it is the 

person's specific intention to cause a certain result" which can be inferred from the 

manner in which the act is done and other circumstances in evidence. R.C. 2901.22(A); 

State v. Huffman, 131 Ohio St. 27 (1936), paragraph four of the syllabus. S.W. testified 

that Boyd kept her in the room of the apartment against her will after he kicked in the 

door, attacked, and raped her. This is corroborated by police testimony that the patio 

door showed signs of forced entry, the presence of Boyd's sperm in her vagina as testified 

to by one or more experts, and both his and her DNA on the gun consistent with her 

testimony of how he used it during the acts to which she testified. This is substantial 

evidence from which a jury could have inferred that it was Boyd's specific intention to 

keep S.W. under his control within the apartment to facilitate the rape and prevent her 

from calling the police and facilitating his escape from responsibility for the aggravated 
No. 14AP-961 14 

burglary. S.W. also testified that Boyd penetrated her vagina with a loaded gun and licked 

it as a prelude to raping her with his penis. This was corroborated by the presence of 

Boyd's sperm in her vagina and the DNA of both Boyd and S.W. on the muzzle of the gun. 

A jury could have reasonably inferred a purpose to terrorize S.W. from this evidence and 

could also have inferred that Boyd's purpose was to engage in sexual activity with S.W. 

against her will. 

{¶ 22} There was substantial evidence to support all of the alternative means 

presented to the jury by which Boyd might have been found to have committed each 

offense for which he was convicted. Under these circumstances, the jury therefore was not 

required to agree on the means by which the crimes were committed so long as the 

members of the jury unanimously agreed on the ultimate result. See, e.g., Fry at ¶ 125-38; 

Gardner at ¶ 49. The record establishes that the jury was unanimous on the result; all 12 

jurors signed the verdict forms and the jury was polled, with jurors' individual answers 

showing no inconsistency with the verdict. This is all the unanimity that was required in 

this case. The general instruction given by the trial court was sufficient and does not 

amount to error, plain or otherwise. For these reasons, we decline to find plain error, 

especially considering that, based on the evidence the jury heard, we find that Boyd's 

substantial rights were not affected. That is, any error in the trial court's instruction did 

not and could not have affected the outcome of the trial. 

IV. CONCLUSION 

{¶ 23} We overrule Boyd's assignment of error and affirm the judgment of the 

Franklin County Court of Common Pleas. 

Judgment affirmed. 

KLATT and LUPER SCHUSTER, JJ., concur.