[Cite as State v. Wilson, 2010-Ohio-2947.]

IN THE COURT OF APPEALS OF OHIO 

THIRD APPELLATE DISTRICT 

ALLEN COUNTY 

 

STATE OF OHIO, CASE NO. 1-09-53 

 PLAINTIFF-APPELLEE, 

 v. 

DEVONNE J. WILSON, O P I N I O N 

 DEFENDANT-APPELLANT. 

 

Appeal from Allen County Common Pleas Court 

Trial Court No. CR 2009 0101 

Judgment Affirmed 

Date of Decision: June 28, 2010 

 

APPEARANCES: 

Michael J. Short, for Appellant 

Jana E. Emerick, for Appellee 
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WILLAMOWSKI, P.J.,

{¶1} Defendant-Appellant, Devonne Wilson, (“Wilson”), appeals the 

judgment of the Allen County Court of Common Pleas finding him guilty of two 

counts of aggravated robbery. Wilson contends that he was denied effective 

assistance of counsel; that the trial court should have allowed his appointed 

counsel to withdraw; and that the jury verdict forms contained an error. For the 

reasons set forth below, the judgment is affirmed. 

{¶2} On May 9, 2009, two masked men robbed a Chase Bank at gunpoint, 

escaping with almost three thousand dollars. Eleven days later, three masked men 

robbed a Superior Federal Credit Union branch, brandishing guns and ordering the 

customers to get down on the ground. The robbers escaped with nearly sixteen 

thousand dollars in cash but, as they were leaving, they were spotted by two 

customers outside the bank who realized what was happening and attempted to 

pursue the robbers. The customers phoned the police and provided the license 

plate number of the escape vehicle. 

{¶3} The police found the abandoned vehicle nearby and were able to 

trace the rented car to Wilson’s girlfriend. The girlfriend originally stated the 

vehicle had been stolen. However, after further questioning, she admitted that her 

car had not been stolen, but that Wilson had been driving it all day and had 

ordered her to report it as stolen. The police also searched Wilson’s mother’s 
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residence and found guns used in the robbery, work gloves identical to those worn 

by the perpetrators during the robberies, and half-burnt clothing matching that 

worn by the perpetrators. 

{¶4} The police were able to apprehend Wilson and the others implicated 

in the two robberies. On May 14, 2009, the Allen County Grand Jury returned a 

five count indictment charging Wilson with two counts of aggravated robbery, two 

counts of abduction, and one count of kidnapping, all with a firearm specification. 

Wilson entered a plea of not guilty and the trial was set for August 31, 2009. Prior 

to trial, the prosecution dismissed three of the counts, leaving the two aggravated 

robbery offenses, in violation of R.C. 2911.01(A)(1), with firearm specifications. 

{¶5} On August 13, 2009, Wilson’s court-appointed counsel filed a 

motion asking for the trial court’s permission to withdraw from the case due to “a 

serious conflict of personalities.” After a hearing on the matter, the trial court 

denied the motion. 

{¶6} On August 24, 2009, defense counsel filed a notice of alibi, which 

included the names of three potential alibi witnesses who would allegedly testify 

that Wilson was somewhere else at the time of the robberies. The State objected 

to their testimony, claiming that it had not received the alibi notice until August 

27, 2009, in violation of Crim.R. 12.1, and that the names of the witnesses had not 
Case No. 1-09-53 

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been provided as part of Crim.R. 16 discovery.1

 The trial court ruled that the alibi 

witnesses would be permitted to testify, provided the State was given an 

opportunity to interview the witnesses prior to trial. The State and the supposed 

alibi witnesses did not meet and, therefore, the trial court did not permit them to 

testify. 

{¶7} At trial, the jury heard testimony from numerous witnesses, 

including Wilson’s girlfriend, Raelishia McWay, who testified in detail how 

Wilson had gone to check out the bank beforehand; had left with his gun on the 

day of the robbery and returned to the apartment with a large amount of money in 

a plastic bag matching the one used in the robbery; that he had borrowed the getaway car used in the second robbery and then instructed her to report it stolen; that 

Wilson’s cell phone number matched that of the phone found in that car; that 

Wilson’s gun was the same as the gun used in both of the robberies; and that he 

had admitted to her that he had robbed the banks. 

{¶8} Raylon Hardy testified that he had assisted Wilson and Maurice 

Graves in robbing the Superior Federal Credit Union; that each of them was 

assigned a role in the robbery; that Graves was to hop the counter just as he had 

done the “last time” (referring to the robbery of the Chase Bank); that Graves had 

borrowed Hardy’s gun to use in the Chase robbery; and that the three of them, plus 

 

1

 Crim.R. 12.1 requires a defendant who proposes to offer testimony to establish an alibi to file and serve 

written notice upon the prosecuting attorney not less than seven days before trial. Crim.R. 16 pertains to 

discovery disclosure, including witness names and addresses. 
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the get-away driver, executed the robbery, made their escape, split up the money, 

and then left the guns and masks at Wilson’s mother’s home. 

{¶9} Phone records and computer records further corroborated the 

communication between the participants concerning the robberies, and police 

officers testified to finding Wilson’s cell phone in the get-away car and to finding 

the guns and other evidence at Wilson’s mother’s home. After a three-day trial, 

the jurors found Wilson guilty of both counts of aggravated robbery, with the 

firearm specifications. 

{¶10} On September 8, 2009, the trial court sentenced Wilson to ten years 

in prison for each of the two robberies, which were first-degree felonies, and three 

years for each of the firearm specifications, with all sentences to be served 

consecutively, for a total of twenty-six years in prison. It is from this judgment 

that Wilson appeals, raising the following three assignments of error for our 

review. 

First Assignment of Error 

The Defendant was denied effective assistance of Counsel. 

Second Assignment of Error 

The trial court erred in not permitting the withdraw[al] of court 

appointed counsel. 

Third Assignment of Error 

The trial court erred in providing an erroneous verdict form to 

the jury. 
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{¶11} In the first assignment of error, Wilson claims that he was denied 

effective assistance of counsel because defense counsel failed to timely file a 

notice of alibi in accordance with Crim.R. 12.1, and he did not furnish the names 

of the alibi witnesses to the State as part of Crim.R. 16 discovery. Even so, the 

trial court was still going to allow the alibi witnesses to testify if defense counsel 

made the witnesses available for the State to interview at the courthouse, either by 

5:00 p.m. on August 31, 2009, or at 8:00 a.m. the following morning. Wilson 

claims that trial counsel failed to do so, thereby denying the opportunity for the 

jury to hear alibi testimony that would have produced reasonable doubt. 

{¶12} A defendant asserting a claim of ineffective assistance of counsel 

must establish: (1) the counsel's performance was deficient or unreasonable under 

the circumstances; and (2) the deficient performance prejudiced the defendant. 

State v. Kole, 92 Ohio St.3d 303, 306, 2001-Ohio-191, 750 N.E.2d 148, citing 

Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 

674. Moreover, “[j]udicial scrutiny of counsel's performance is to be highly 

deferential, and reviewing courts must refrain from second-guessing the strategic 

decisions of trial counsel.” State v. Sallie, 81 Ohio St.3d 673, 674, 1998-Ohio 

343, 693 N.E.2d 267. “To justify a finding of ineffective assistance of counsel, 

the appellant must overcome a strong presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy.” Id. In 
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establishing whether counsel's performance was deficient, the defendant must 

show that “counsel made errors so serious that counsel was not functioning as the 

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Kole, 92 Ohio 

St.3d at 306, 2001-Ohio-191, 750 N.E.2d 148, quoting Strickland, 466 U.S. at 687. 

An appellate court must review the totality of the circumstances and not isolated 

instances of an allegedly deficient performance. State v. Stacy, 3d Dist. No. 13-

08-44, 2009-Ohio-3816, ¶20. 

{¶13} Wilson claims that his attorney made errors that resulted in the 

exclusion of the testimony of witnesses whom he wished to call at trial in an effort 

to establish an alibi. Although the notice of alibi was not filed until a week before 

the trial, the record reflects that Wilson did not provide defense counsel with the 

names until only a week prior to his filing the notice of alibi. Furthermore, there 

had been a strong difference of opinion between counsel and his client as to 

whether or not an alibi should be filed. (Trial Tr., pp. 5-6.) Defense counsel 

issued subpoenas for the witnesses to appear and he instructed the witnesses to 

appear to meet with the prosecutor at the designated times. There was some 

discussion on the record that the witnesses had been at the courthouse, but did not 

stay to meet with the prosecutors. 

{¶14} As noted above, it was Wilson himself who failed to express a wish 

to present alibi witnesses or provide the names of those witnesses to defense 

counsel until close to trial, despite the fact that the crimes had occurred in March 
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and counsel had been representing Wilson and working on the case for many 

months. Furthermore, there was a strong difference of opinion between defendant 

and his counsel as to whether those witnesses should be used. (Trial Tr., p. 6.) 

The record reflects that defense counsel attempted to make the witnesses available. 

Furthermore, sometimes counsel’s noncompliance with applicable rules of 

disclosure may be construed as a trial tactic. See, e.g., State v. Smith (1985), 17 

Ohio St.3d 98, 477 N.E.2d 1128. As this Court has previously noted, debatable 

strategic and tactical decisions may not form the basis of an ineffective assistance 

of counsel claim, even if a better strategy might have been utilized. State v. Utz, 

3d Dist. No. 3-03-38, 2004-Ohio-2357, ¶12, citing State v. Phillips, 74 Ohio St.3d 

72, 85, 1995-Ohio-171, 656 N.E.2d 643. The decision to call or not call witnesses 

is generally a matter of trial strategy and, absent a showing of prejudice, does not 

deprive a defendant of the effective assistance of counsel. Ulz, citing State v. 

Williams (1991), 74 Ohio App.3d 686, 694, 600 N.E.2d 298. 

{¶15} Based on the above, and the totality of the record showing counsel’s 

diligent representation, we do not find that counsel's performance was deficient or 

unreasonable under the circumstances. Wilson’s first assignment of error is 

overruled. 

{¶16} In his second assignment of error, Wilson maintains that the trial 

court erred when it denied defense counsel’s motion to withdraw. At the hearing 

on the motion, defense counsel indicated that there was a “strong personality 
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conflict” between Wilson and himself, although he did not go into detail on the 

nature of this conflict, stating that it would be inappropriate to do so. Wilson 

contends that the trial court should have conducted further inquiry as to the nature 

of the conflict in order to ensure that such a conflict would not have prevented 

counsel from providing effective representation. 

{¶17} The Sixth Amendment right to counsel does not guarantee a 

defendant the right to counsel of his choosing, and there must be good cause to 

justify a substitution of counsel. State v. Murphy, 91 Ohio St.3d 516, 523, 2001-

Ohio-112, 747 N.E.2d 765. In order to remove a court-appointed attorney from a 

case, there must be “a breakdown in the attorney-client relationship of such 

magnitude as to jeopardize the defendant’s right to effective assistance of 

counsel.” State v. Hennes, 79 Ohio St.3d 53, 65, 1997-Ohio-405, 679 N.E.2d 686, 

quoting State v. Coleman (1988), 37 Ohio St.3d 286, 525 N.E.2d 792, paragraph 

four of the syllabus. The Sixth Amendment does not guarantee “rapport” or a 

“meaningful relationship” between client and counsel. State v. Hennes, supra, 

citing Morris v. Slappy (1983), 461 U.S. 1, 13-14, 103 S.Ct. 1610, 1617, 75 

L.Ed.2d 610, 621. The decision not to remove court-appointed counsel is 

reviewed under an abuse of discretion standard. Murphy, 91 Ohio St.3d at 523. 

{¶18} At the hearing on defense counsel’s motion to withdraw, the trial 

court did attempt to make further inquiry into the reasons behind the motion, but 

Wilson did not take the opportunity to elaborate. Defense counsel had stated “my 
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client and I have a strong personality conflict,” and that it wouldn’t be appropriate 

to go into the specifics of any of the discussions they had.2

 (Aug. 17 Hearing Tr., 

p.1.) The trial court then attempted to obtain more information from Wilson. 

The Court: Mr. Wilson, what do you have to say about this? 

Mr. Wilson: I agree with him. 

The Court: Is that all you have to say? 

Mr. Wilson: Yes. 

(Id., at p. 2.) The trial court concluded that the since the only issue before the 

court was a personality conflict, that reason did not warrant a change in counsel 

according to law, citing Morris v. Slappy, and State v. Hennes, supra. The trial 

court also observed that in order to replace counsel because of a conflict, there 

must be an actual conflict of interest, not merely a personality conflict. Hennes, 

79 Ohio St.3d at 65, citing Strickland v. Washington, supra. Furthermore, there 

already had been months of discovery, motions, hearings, and trial preparation, 

and the trial was scheduled to commence within two weeks. 

{¶19} Based on the above, the trial court did not abuse its discretion in 

denying counsel’s motion to withdraw. Wilson’s second assignment of error is 

overruled. 

 

2

 Although counsel would not give any further reason at the hearing, just prior to trial he further indicated 

that “there is a strong difference of opinion as to whether or not there would be an alibi filed,” which would 

appear to indicate that the motion to withdraw had something to do with the alibi. (Trial Tr., p. 6.) 
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{¶20} In his final assignment of error, Wilson asserts that the trial court 

provided an erroneous verdict form to the jury. The verdict form stated, “we the 

jury, *** find beyond a reasonable doubt, the Defendant, Devonne J. Wilson 

_____________ of aggravated robbery.” The jury was to put their finding of 

“guilty” or “not guilty” on the blank line. Wilson complains that the wording on 

the form gave the jury two choices: 1) to find him guilty beyond a reasonable 

doubt; or, 2) to find him not guilty beyond a reasonable doubt. Wilson raised an 

objection at trial because the latter choice set forth an erroneous burden of proof 

and an incorrect statement of the law. Wilson claims that the use of this defective 

form mandates reversal of the conviction because the error constitutes a “structural 

error." 

{¶21} The State acknowledges that the wording of the verdict forms could 

have been more precisely crafted so as to avoid the issue raised here. However, 

the State contends that the wording of the verdict forms does not amount to 

reversible error, particularly when considered with the instructions in their entirety 

that were given to the jury before their deliberations. 

{¶22} In most cases, when a defendant is represented by counsel and is 

tried by an impartial adjudicator, there is a presumption that any trial errors are not 

structural errors, but are subject to Crim.R. 52 harmless-error analysis. State v. 

Cihonski, 178 Ohio App.3d 713, 2008-Ohio-5191, 900 N..E.2d 212, ¶18, citing 

State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, ¶78. Rarely, 
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an error may be so egregious that it rises to the level of a structural error. Colon, 

2008-Ohio-1624, at ¶20. In State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 

789 N.E.2d 222, ¶9, the Ohio Supreme Court discussed the differences between 

structural errors and trial errors. 

In Arizona v. Fulminante (1991), 499 U.S. 279, 306-312, 111 S.Ct. 

1246, 113 L.Ed.2d 302, the United States Supreme Court 

denominated the two types of constitutional errors that may 

occur in the course of a criminal proceeding – “trial errors,” 

which are reviewable for harmless error, and “structural 

errors,” which are per se cause for reversal. *** “Trial error” is 

“error which occurred during the presentation of the case to the 

jury, and which may therefore be quantitatively assessed in the 

context of other evidence presented in order to determine 

whether its admission was harmless beyond a reasonable 

doubt.” *** “Structural errors,” on the other hand, “defy 

analysis by ‘harmless error’ standards” because they “affect[ ] 

the framework within which the trial proceeds, rather than 

simply [being] an error in the trial process itself.” [Fulminante] 

at 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302. Consequently, 

a structural error mandates a finding of “per se prejudice.” 

{¶23} Both the United States Supreme Court and the Supreme Court of 

Ohio have rejected the concept that structural error exists in every situation in 

which even a serious or a constitutional error has occurred. See State v. Wamsley, 

117 Ohio St.3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶18. In fact, the United 

States Supreme Court and Ohio courts have found structural errors warranting 
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reversal in only a very limited number of cases. See Cihonski, 2008-Ohio-5191, 

at ¶¶20-21.3

{¶24} Wilson argues that an “incorrect reasonable doubt instruction” is one 

of the limited class of cases which “always requires reversal of the conviction” 

because it constitutes a structural error, citing to Sullivan v. Louisiana (1993), 508 

U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182. However, we find that the incorrect 

reasonable doubt instruction in Sullivan involved an entirely different issue than 

the issue that is before us in this case. Sullivan involved a death penalty appeal in 

which the definition of “reasonable doubt” was identical to one previously held 

unconstitutional. In Sullivan, because the essential definition of “reasonable 

doubt” upon which the jury based its decision was wrong, there could be no 

factual findings made by the jury beyond a reasonable doubt upon which an 

appellate court could base a harmless-error analysis. Id. at 2082. It would be 

tantamount to a jury determining that the defendant was probably guilty, and then 

leaving it up to the judge to determine whether he was guilty beyond a reasonable 

 

3

 For example, the United States Supreme Court has found structural errors warranting reversal where the 

defendant was completely denied counsel, Gideon v. Wainwright (1963), 372 U.S. 335, 83 S.Ct. 792, 9 

L.Ed.2d 799; where the trial judge was biased, Tumey v. Ohio (1927), 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 

749; where racial discrimination took place in grand jury selection, Vasquez v. Hillery (1986), 474 U.S. 

254, 106 S.Ct. 617, 88 L.Ed.2d 598; where the defendant was denied self-representation at trial, McKaskle 

v. Wiggins (1984), 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122; where the defendant was denied a public 

trial, Waller v. Georgia (1984), 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31; and where the instruction on 

reasonable doubt was defective, Sullivan v. Louisiana (1993), 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 

182. Likewise, Ohio courts have recognized structural error in only a limited number of cases, such as 

where a defective indictment led to multiple, significant errors throughout a trial, State v. Colon, 118 Ohio 

St.3d 26, 2008-Ohio-1624, 885 N.E.2d 917, on reconsideration, State v. Colon, 119 Ohio St.3d 204, 2008-

Ohio-3749, 893 N.E.2d. (See Chonski for other examples.) 
Case No. 1-09-53 

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doubt, thereby denying the defendant of his Sixth Amendment right to a trial by 

jury. Id. at 2081. 

{¶25} A review of the record in Wilson’s case reveals that the jury was 

repeatedly instructed that it was mandatory that the defendant be found not guilty 

unless the State had proven the elements of the crimes beyond a reasonable doubt. 

None of the instructions implied that Wilson had any burden of proof as to his 

innocence. To the contrary, the jury was specifically instructed that the defendant 

was not required to prove his innocence beyond a reasonable doubt. Specifically, 

the jury was instructed as follows: 

The defendant is presumed innocent until his guilt is established 

beyond a reasonable doubt. The defendant must be acquitted 

unless the state produces evidence, which convinces you, beyond 

a reasonable doubt, of every essential element of the crime 

charged in the indictment. 

The defendant in a criminal case is not required to present any 

evidence, and if he chooses to present evidence, such evidence 

need not convince you beyond a reasonable doubt of his 

innocence. Rather it need only raise a reasonable doubt as to his 

guilt. If, after considering the evidence as a whole you have 

reasonable doubt as to the defendant’s guilt, you must acquit 

him. 

(Trial Tr., pp. 506-07, emphasis added.) The trial court then defined “reasonable 

doubt” for the jury, and further instructed that: 

If, after a full and impartial consideration of all the evidence, 

you are firmly convinced of the truth of the charge, the state has 

proved its case beyond a reasonable doubt. 
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If you are not firmly convinced of the truth of the charge or 

charges, you must find the defendant not guilty. 

(Trial Tr., p. 507.) The trial court gave additional instructions relating to the case 

and further instructed the jury that before the jury could find the defendant guilty, 

it must find beyond a reasonable doubt that Wilson committed each element of the 

offense, which the trial court then specified, and further instructed: 

If you find as to Count 1 – if you find the state has proved, 

beyond a reasonable doubt, all the essential elements of 

aggravated robbery, your verdict must by guilty of aggravated 

robbery. 

If you find the state has failed to prove, beyond a reasonable 

doubt any one of the essential elements of aggravated robbery, 

your verdict must be not guilty of aggravated robbery as 

charged. 

(Trial Tr., pp. 512-16.) The trial court then gave an identical instruction as to the 

second count, except for modifying the date as appropriate. Finally, the jury was 

instructed that “[i]t is your duty to carefully weigh the evidence, to decide all 

disputed questions of fact, to apply the instructions of the court to your findings, 

and to render your verdict accordingly”. (Trial Tr., p. 524.) 

{¶26} After reviewing the record, we conclude that the instructions in this 

case did not render the trial so fundamentally unfair that it could not be a reliable 

vehicle for the determination of the defendant's guilt or innocence. See Rose v. 

Clark, 478 U.S. at 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. This case did not 

rise to a violation of a fundamental constitutional right that would lead to the kind 
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of basic unfairness amounting to structural error. Therefore, the alleged error must 

be reviewed under the harmless error standard. Harmless error is defined as: 

“[a]ny error, defect, irregularity, or variance which does not affect substantial 

rights shall be disregarded.” Crim.R. 52(A). Harmless error does not affect the 

outcome of the case and, thus, does not warrant a judgment to be overturned or set 

aside. State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796 N.E.2d 506, ¶7; 

see, also, State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, 

¶15. 

{¶27} In a similar case reviewed by the Eleventh District Court of Appeals, 

an almost identical jury form was used and the reviewing court did not find that 

the error rose to a level requiring reversal. See State v. Schlee, 11th Dist. No. 

1004-L-070, 2005-Ohio-5117, ¶14. Although the appellate court in Schlee 

reviewed the jury instruction under a plain error standard, we find their conclusion 

instructive. 

Accordingly, while the jury verdict form itself was flawed, when 

taken as a whole, the jury instructions were not so tainted as to 

rise to the level of plain error. The trial court's other 

instructions limited any potential prejudice. There was 

overwhelming evidence of appellant's guilt presented at trial so, 

but for the flaw in the jury verdict form this court can not 

conclude that the outcome of the trial would have been different. 

Id. 

{¶28} Likewise, in the case before us, in light of the overall instructions of 

law provided to the jury and also in light of the overwhelming evidence presented 
Case No. 1-09-53 

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as to Wilson’s guilt, we do not find that the wording of the jury form affected a 

substantial right or in any way affected the outcome of Wilson’s trial. Based 

upon the facts of this case, any flaw in the verdict forms was harmless error. 

Wilson’s third assignment of error is overruled. 

{¶29} Therefore, having found no error prejudicial to the appellant herein 

in the particulars assigned and argued, we affirm the judgment of the trial court. 

Judgment Affirmed 

PRESTON, J., concurs. 

/jnc 

ROGERS, J., concurs in part, dissents in part. 

{¶30} I concur fully with the majority’s disposition of the first and second 

assignments of error; however, I respectfully dissent from the majority’s 

disposition of the third assignment of error. As stated in the majority opinion, the 

jury verdict form instructed that, to find the defendant “not guilty,” the jury must 

find him not guilty “beyond a reasonable doubt.” Unlike the majority, I would 

find that this error in the jury verdict form amounted to a structural error not 

subject to harmless error analysis. I agree with the majority’s finding that this 

factual scenario differs from that in Sullivan v. Louisiana (1993), 508 U.S. 275, in 

that it did not contain a Sixth Amendment defect; however, I believe that the form 

was still constitutionally deficient because it did not comport with the Fifth 

Amendment requirements of presumption of innocence and that a guilty verdict 
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must be supported by proof beyond a reasonable doubt. Thus, I would reverse on 

the basis that the jury verdict form was constitutionally deficient as it was a 

“denial of the right to a jury verdict of guilt beyond a reasonable doubt, the 

consequences of which are necessarily unquantifiable and indeterminate” and, 

consequently, that the error was a structural defect. See Sullivan, 508 U.S. 275, at 

syllabus. 

{¶31} It is an acceptable practice to use a single verdict form which simply 

says: 

We, the jury, find the defendant, (insert name of defendant), 

(*) __________ of (insert name of offense and section number4

). 

(*) Insert in ink: “Guilty” or “Not Guilty.” 

OJI CR 425.33, Verdict. 

{¶32} I believe that a better practice would be to provide two verdict forms 

for each offense presented to the jury for consideration. 

{¶33} One to say: 

We, the jury, find the defendant, (insert name of defendant), 

guilty beyond a reasonable doubt of (insert name of offense and 

section number). 

 

4

 I would suggest inclusion of the section/subsection number to avoid any issues as to the degree of the 

offense, as delineated in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256. 
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{¶34} The other to say: 

We, the jury, find the defendant, (insert name of defendant), not 

guilty of (insert name of offense and section number).