State v. Blanton

2023 Ohio 89, 206 N.E.3d 14

• Court: Ohio Court of Appeals
• Decided: January 13, 2023
• Docket: 29451
• Status: Published

Opinion

[Cite as State v. Blanton, 2023-Ohio-89.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Appellee : C.A. No. 29451 : v. : Trial Court Case No. 2020 CR 01381 : GREGORY E. BLANTON : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on January 13, 2023

MATHIAS H. HECK, JR., by ELIZABETH A. ELLIS, Attorney for Appellee

DAVID R. MILES, Attorney for Appellant

.............

WELBAUM, J.

{¶ 1} Appellant, Gregory E. Blanton, appeals from his convictions in the

Montgomery County Court of Common Pleas of purposeful murder, with a firearm

specification, and endangering children. A jury had found him guilty of purposeful

murder, felony murder, felonious assault, endangering children, and five firearm -2-

specifications, but some of the offenses were merged. In support of his appeal, Blanton

contends that the trial court erred by failing to include a jury instruction on involuntary

manslaughter as a lesser included offense of purposeful murder and felony murder.

Blanton also contends that the trial court erred by adding certain language to the standard

jury instruction on the affirmative defense of blackout. Blanton further contends that all

of his convictions were against the manifest weight of the evidence and that his trial

counsel provided ineffective assistance in various respects. For the reasons outlined

below, we disagree with Blanton’s arguments and will affirm the judgment of the trial court.

Facts and Course of Proceedings

{¶ 2} On May 20, 2020, a Montgomery County grand jury returned an indictment

charging Blanton with one count of purposeful murder in violation of R.C. 2903.02(A), two

counts of felony murder in violation of R.C. 2903.02(B), one count of felonious assault in

violation of R.C. 2903.11(A)(1) (serious physical harm), one count of felonious assault in

violation of R.C. 2903.11(A)(2) (deadly weapon), and one misdemeanor count of

endangering children in violation of R.C. 2919.22(A). The counts for murder, felony

murder, and felonious assault each included a three-year firearm specification under R.C.

2929.14 and R.C. 2941.145. All the charges stemmed from the shooting death of

Blanton’s paramour, K.C.

{¶ 3} Blanton pled not guilty to all the charges and specifications in the indictment,

and the matter proceeded to a jury trial. At trial, the State presented testimony from

several witnesses including K.C.’s neighbors and friends, the officers who investigated -3-

the shooting, the children services caseworker who was assigned to work with K.C. and

Blanton’s son, the cellular analyst who traced Blanton’s cell phone to the scene of the

shooting, and the coroner who examined K.C.’s body. In his defense, Blanton presented

expert testimony from a licensed psychologist and also testified on his own behalf. The

following is a summary of the testimony and evidence that was presented at trial.

Blanton and K.C.’s Relationship

{¶ 4} Blanton began having an extramarital affair with K.C. several years prior to

K.C.’s death. Although Blanton reconciled with his wife, he continued to engage in

sexual activity with K.C. Blanton and K.C.’s relationship resulted in K.C.’s giving birth to

a son in 2015. After the birth of their son, Blanton and K.C. had problems negotiating

visitation.

Joy Young and Deveney Starks

{¶ 5} On the morning of May 9, 2020, K.C. was on her cell phone using the

Facetime application to do a group video chat with two of her friends and coworkers, Joy

Young and Deveney Starks. Young and Starks testified that as they were chatting with

K.C., K.C. and her four-year-old son were getting into K.C.’s vehicle to go run some

errands. Young and Starks testified that once K.C. was inside her vehicle, she looked in

her rearview mirror and said in an upset tone: “What is he doing here?” and “I told him

about popping up at my house.” Trial Tr., Vol. III, p. 345-346 and 362.

{¶ 6} Young and Starks thereafter saw K.C. get out of her vehicle and walk out of -4-

her garage and into her driveway. Young and Starks testified that as K.C. was walking

to her driveway, she told them that she was going to mute the call. After K.C. muted the

call, Starks continued looking at her cell phone screen to try and figure out what was

going on. Starks testified that she saw K.C. approach someone and say some words

that she could not hear because the call was muted. Starks and Young testified that

K.C.’s cell phone then froze while showing an image of the sky and then later went black.

Later that day, Starks and Young learned that K.C. had been shot and killed in her

driveway.

Jesse Smith

{¶ 7} Jesse Smith, a neighbor who was temporarily living with his in-laws in a

house directly across the street from K.C.’s house, testified that on the morning of May 9,

2020, he was standing in his living room with his youngest daughter watching the morning

news when he looked out the window and saw K.C. and a man standing in her driveway

arguing. Smith testified that he recognized the man as the father of K.C.’s child, who

was later identified as Blanton. Believing that the argument was none of his business,

Smith turned back to watch the news. Shortly thereafter, Smith heard five or six quick

gunshots. After hearing those gunshots, Smith looked back out the window and saw

Blanton holding a handgun and standing over K.C., who was lying face down on the

ground. Smith testified that he then saw Blanton fire five or six more shots in rapid

succession while aiming his firearm at the upper half of K.C.’s body.

{¶ 8} Continuing, Smith testified that he saw Blanton leave the scene in a hurry in -5-

his black Chevy Impala. Smith ran outside to get Blanton’s license plate number and

called 9-1-1 to report the incident. Smith testified that when he ran across the street to

K.C.’s driveway, he saw a child yelling and crying hysterically while standing a few feet

away from K.C.’s body. Smith also testified that he was interviewed by detectives and

that he identified Blanton as the shooter in a photospread presented to him on May 11,

2020.

Rennes Bowers

{¶ 9} Smith’s fellow neighbor, Rennes Bowers, also rushed to the scene of the

shooting. Bowers testified that on the morning in question he was standing in his kitchen

with his wife when he heard five rapid-fire gunshots. Upon hearing the gunshots, Bowers

ran outside and saw K.C. lying in the driveway and her son standing in the front yard

crying. Bowers testified that K.C.’s son ran into his arms very upset. Bowers testified

that K.C.’s son was screaming and crying and said: “Why did daddy kill mommy?” and

“Why did daddy shoot mommy?” Trial Tr., Vol. IV, p. 412. During this time, Bowers

testified that he saw a black vehicle drive off at a high rate of speed. Bowers had his

wife called 9-1-1 while he went to check if K.C. was alive. Bowers testified, however,

that there were no signs of life, as K.C. had been shot in the head several times.

Denise Chestnut

{¶ 10} Another neighbor, Denise Chestnut, testified that on the morning in question

she heard rapid-fire gunshots and something that sounded like a wounded animal. -6-

Chestnut thereafter heard a child make a distressed scream. Upon hearing this,

Chestnut ran outside her front door and saw Bowers running down the street with his wife

behind him. Chestnut testified that she then saw K.C. lying on the ground and that

Bowers instructed her to call 9-1-1. Chestnut testified that Bowers had K.C.’s son with

him and that she took the boy from Bowers and shielded him from looking at his mother’s

body. Chestnut then took K.C.’s son to her house to get him away from the scene.

Chestnut testified that K.C.’s son was in a distressed state and kept repeated multiple

times: “My Dad shot my Mom, and my Mom[ is] dead.” Trial Tr., Vol. IV, p. 438-439.

Officer Melissa Boyes

{¶ 11} Officer Melissa Boyes of the Dayton Police Department testified that she

was the first officer at the scene of the shooting. Officer Boyes testified that when she

arrived, she observed a deceased female lying face down in the driveway with blood

coming out of her head. Officer Boyes also observed a cell phone located near the victim

with voices talking on it. In addition, Boyes observed more than five shell casings lying

around the victim, but no weapons. Boyes testified that she was able to determine that

Blanton was the registered owner of the black Chevy Impala that had fled the scene using

a partial license plate number that was provided by one of the neighbors.

Officer Craig Stiver

{¶ 12} Officer Craig Stiver of the Dayton Police Department, an evidence

technician who collected evidence and took photographs of the crime scene, testified that -7-

he collected 11 nine-millimeter shell casings, which indicated that 11 bullets had been

fired. The parties stipulated that all 11 casings were fired from the same weapon.

Jamie Fricke

{¶ 13} Jamie Fricke, a former employee of Montgomery County Children Services,

testified that Blanton gave consent for his son to be placed in therapy following K.C.’s

death. Fricke testified that while she spoke with Blanton, Blanton acknowledged that the

shooting incident had occurred and that his son might have heard the shooting. Fricke

testified, however, that Blanton was unsure whether his son saw the shooting.

Agent Lance Kepple

{¶ 14} Lance Kepple, a special agent with the FBI, testified that he is part of a

group of specially trained agents who know how to interpret cell phone records and

determine communication patterns and geolocation. Agent Kepple testified that he was

asked by the Dayton Police Department to perform a cellular analysis on Blanton’s cell

phone. Agent Kepple testified that, based on the call detail records from Blanton’s cell

phone, he was able to determine that Blanton’s cell phone was in the area of K.C.’s

residence at the time of the shooting.

Detective Zachary Williams

{¶ 15} Detective Zachary Williams of the Dayton Police Department, the lead

detective for K.C.’s homicide investigation, testified that on the evening after the shooting, -8-

Blanton turned himself into law enforcement. Detective Williams testified that he

processed Blanton for arrest and had him booked into jail. In doing so, Detective

Williams testified that he took three photographs of Blanton’s head; while taking those

photographs, Williams did not observe any physical injuries on Blanton, and Blanton did

not complain of any physical injuries. Detective Williams further testified that neither

Blanton’s vehicle nor the firearm used in the shooting was ever recovered. Detective

Williams also confirmed that there were no other suspects in the shooting.

Dr. Susan Brown

{¶ 16} Forensic pathologist Susan Brown testified that she performed an autopsy

on K.C.’s body. Dr. Brown testified that K.C. had five distinct gunshot wounds to her

head and multiple abrasions on her forehead, nose, and upper lip. Dr. Brown also

testified that there were no gunshot wounds to K.C.’s lower extremities and that K.C.’s

cause of death was homicide by multiple gunshot wounds to the head.

Gregory Blanton

{¶ 17} Blanton testified that on the morning in question he went to pick up his son

from K.C. because he had planned on celebrating his birthday that day and having family

pictures taken. Blanton testified that when he arrived at K.C.’s residence, he put his son

in his vehicle and they drove away. However, Blanton testified that he forgot his son’s

toy dinosaurs, so they went back to K.C.’s house to pick up the dinosaurs and to get his

son’s toothbrush. Blanton testified that when he returned to K.C.’s residence, he and -9-

K.C. began to argue about a bag of clothes that K.C. wanted Blanton to take with him for

their son; his son got out of his car as they were arguing. Blanton testified that when he

turned around to pick up his son, K.C. punched him in the mouth and in the back of his

head. Blanton then claimed that he blacked out and did not remember anything until he

“came to” and saw K.C. lying on the ground. Trial Tr., Vol. V, p. 652.

{¶ 18} Blanton testified that he regularly carried a handgun on his person even

though his gun permit had expired. Blanton also testified that he had his handgun with

him on the morning of the shooting and admitted that his handgun was in his hand when

he awoke from his blackout. Blanton stated that when the blackout was over, he did not

know what had happened and he did not see his son anywhere. Blanton testified that

he panicked, got into his vehicle, and left the scene. Blanton also confirmed that he

eventually turned himself in to law enforcement.

Dr. Barbara Bergman

{¶ 19} Dr. Barbara Bergman, a licensed psychologist, testified that, at Blanton’s

request, she had been appointed by the trial court to perform a second-opinion evaluation

on his mental condition. During her testimony, Dr. Bergman provided Blanton’s mental

health background and testified that, as a child, Blanton had been diagnosed with

attention deficit hyperactivity disorder (“ADHD”) and had been severely behaviorally

handicapped due to explosiveness and aggression. Dr. Bergman testified that Blanton

had been sexually abused as a child and had witnessed domestic violence in his home.

Dr. Bergman further testified that Blanton suffered from post-traumatic stress disorder -10-

(“PTSD”) and intermittent explosive disorder.

{¶ 20} Continuing, Dr. Bergman testified that Blanton told her that K.C. had hit him

on the head and that he “went black” and did not remember the details of when he fired

his weapon. Trial Tr., Vol. V, p. 624. Dr. Bergman testified that getting hit in the head

would not have caused Blanton to blackout unless he had traumatic brain injury. Dr.

Bergman also testified that blackouts are not a symptom of PTSD and that, when Blanton

described what had happened during his blackout, he described the psychological

symptoms of “intermittent explosive disorder.” Trial Tr., Vol. V, p. 628. Accordingly, in

her expert opinion, Dr. Bergman testified that Blanton had not suffered from a blackout

when he shot and killed K.C., but from intermittent explosive disorder. Id.

Jury Instructions

{¶ 21} After both parties rested, Blanton requested a jury instruction on involuntary

manslaughter as a lesser included offense of purposeful murder and felony murder and

an instruction on the affirmative defense of blackout. The trial court denied Blanton’s

request for a jury instruction on involuntary manslaughter, but granted his request for an

instruction on the defense of blackout. The trial court, however, indicated that in addition

to giving the standard blackout instruction, it was going to add the following language

from State v. Cutlip, 11th Dist. Lake No. 99-L-149, 2001 WL 687493, (June 15, 2001):

“The evidence must establish that the Defendant was unconscious and acted

involuntarily. A defendant’s mere failure to remember what happened does not

constitute such evidence.” Blanton objected to the additional language, and the trial -11-

court overruled the objection.

Verdict and Sentence

{¶ 22} After deliberations, the jury found Blanton guilty as charged in the

indictment. At sentencing, the trial court merged the counts for purposeful murder, felony

murder, and felonious assault and their attendant firearm specifications. The State then

elected to have Blanton sentenced for purposeful murder. Thereafter, the trial court

imposed a mandatory term of 15 years to life in prison for purposeful murder and a

consecutive three-year prison term for the attendant firearm specification to be served

prior to the 15-year-to-life term. The trial court also imposed 180 days of local

incarceration for endangering children and ordered that sentence to be served

concurrently to the murder sentence. Accordingly, Blanton received a total, aggregate

sentence of 18 mandatory years to life in prison.

{¶ 23} Blanton now appeals from his convictions, raising four assignments of error

for review.

First Assignment of Error

{¶ 24} Under his first assignment of error, Blanton contends that the trial court

erred by failing to give a jury instruction on involuntary manslaughter as a lesser included

offense of purposeful murder and felony murder. We disagree.

{¶ 25} “A trial court has broad discretion to decide how to fashion jury instructions,

but it must ‘fully and completely give the jury all instructions which are relevant and -12-

necessary for the jury to weigh the evidence and discharge its duty as the fact finder.’ ”

State v. White, 142 Ohio St.3d 277, 2015-Ohio-492, 29 N.E.3d 939, ¶ 46, quoting State

v. Comen, 50 Ohio St.3d 206, 553 N.E.2d 640 (1990), paragraph two of the syllabus. “A

defendant is only entitled to have his proposed jury instructions given when they are

correct statements of the law, pertinent to the evidence in the record or to material issues,

and are timely presented and not already included in the substance of the jury charge.”

State v. Elliott, 2d Dist. Montgomery No. 26104, 2014-Ohio-4958, ¶ 23, citing State v.

Guster, 66 Ohio St.2d 266, 269, 421 N.E.2d 157 (1981). “When reviewing the trial

court’s jury instructions, the proper standard of review is whether the trial court’s decision

to give or exclude a particular jury instruction was an abuse of discretion under the facts

and circumstances of the case.” (Citation omitted.) State v. Fair, 2d Dist. Montgomery

No. 24388, 2011-Ohio-4454, ¶ 65. A trial court abuses its discretion when it makes a

decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State

v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34.

{¶ 26} “Crim.R. 31(C) and R.C. 2945.74 provide that a jury may find a defendant

not guilty of the offense charged but guilty of a lesser included offense.” State v.

Hanners, 2d Dist. Montgomery No. 29375, 2022-Ohio-4114, ¶ 25. Therefore, “[a]

criminal defendant is sometimes entitled to a jury instruction that allows the jury to

consider convicting the defendant of a lesser included offense as an alternative to

convicting for the offense for which the defendant was charged.” State v. Owens, 162

Ohio St.3d 596, 2020-Ohio-4616, 166 N.E.3d 1142, ¶ 8, citing State v. Thomas, 40 Ohio

St.3d 213, 216-218, 533 N.E.2d 286 (1988). “ ‘An offense may be a lesser included -13-

offense of another only if (i) the offense is a crime of lesser degree than the other, (ii) the

offense of the greater degree cannot be committed without the offense of the lesser

degree also being committed and (iii) some element of the greater offense is not required

to prove the commission of the lesser offense.’ ” State v. Deanda, 136 Ohio St.3d 18,

2013-Ohio-1722, 989 N.E.2d 986, ¶ 7, quoting State v. Wilkins, 64 Ohio St.2d 382, 384,

415 N.E.2d 303 (1980). Accord State v. Stanaford, 2d Dist. Montgomery No. 27940,

2019-Ohio-1377, ¶ 59.

{¶ 27} “In Ohio, courts employ a two-part test to determine whether a jury

instruction on a lesser included offense is necessary.” State v. Lambert, 2d Dist.

Montgomery No. 28655, 2021-Ohio-17, ¶ 41, citing State v. Kidder, 32 Ohio St.3d 279,

280-281, 513 N.E.2d 311 (1987). “First, the trial court must determine whether the

offense on which the instruction is requested is a lesser included offense of the crime

charged.” Id., citing Kidder at 280. “Second, the trial court must determine whether the

evidence adduced at trial would support an instruction on the lesser included offense.”

Id., citing Kidder at 281. In doing so, “[t]he evidence must be considered in the light most

favorable to the defendant.” Id. at ¶ 48, citing State v. Campbell, 74 Ohio App.3d 352,

358, 598 N.E.2d 1244 (1st Dist.1991). “A court should give a charge on a lesser-

included offense where the evidence presented at trial can reasonably support both an

acquittal on the crime charged and a conviction upon the lesser-included offense.” Id.,

citing Thomas at paragraph two of the syllabus.

{¶ 28} In this case, Blanton contends that the trial court abused its discretion by

failing to give a jury instruction on involuntary manslaughter as a lesser included offense -14-

of purposeful murder in violation of R.C. 2903.02(A) and felony murder in violation of R.C.

2903.02(B). “Involuntary manslaughter is always and necessarily a lesser included

offense of murder because murder cannot ever be committed without also committing or

attempting to commit a felony or a misdemeanor.” Kidder at 282; Thomas at 215; State

v. Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144, ¶ 39. Involuntary

manslaughter is also a lesser-included offense of felony murder. State v. Rider, 2d Dist.

Champaign No. 2021-CA-12, 2022-Ohio-1964; ¶ 41, citing Thomas at 215. See also

Lambert at ¶ 47.

{¶ 29} R.C. 2903.04 defines involuntary manslaughter as causing “the death of

another * * * as a proximate result of the offender’s committing or attempting to commit a

felony” or “a misdemeanor of any degree.” R.C. 2903.04(A) and (B). It is almost

identically worded to the felony murder statute, R.C. 2903.02(B), which prohibits one from

causing “the death of another as a proximate result of the offender’s committing or

attempting to commit an offense of violence that is a felony of the first or second degree[.]”

R.C. 2903.02(B). “The primary difference between the felony-murder statute and the

involuntary-manslaughter statute is that the former requires the underlying offense to be

a first-degree or second-degree felony offense of violence, whereas the latter merely

requires that the underlying offense be a felony or a misdemeanor.” State v. Rosales,

2d Dist. Montgomery No. 27117, 2018-Ohio-197, ¶ 20; Lambert at ¶ 49. Therefore,

“[w]hile proof of felony murder * * * would always and necessarily prove involuntary

manslaughter, * * * the converse is not true.” State v. Dixon, 2d Dist. Montgomery No.

18582, 2002 WL 191582, *3 (Feb. 8, 2002). -15-

{¶ 30} In this case, Blanton’s two counts of felonious assault (deadly weapon and

serious physical harm) were the only charges that could have warranted a conviction for

involuntary manslaughter. While Blanton was also charged with one misdemeanor

count of endangering children, the victim of that offense, Blanton’s son, was not killed by

Blanton. In other words, Blanton’s commission of the endangering children offense did

not proximately result in the death of another, as the death in this case was proximately

caused by Blanton’s felonious assault on K.C. Therefore, under the specific facts of this

case, the endangering children offense could not have served as the offense underlying

a conviction for involuntary manslaughter.

{¶ 31} Because felonious assault is a second-degree felony and an offense of

violence, it can serve as the underlying offense to a conviction for felony murder. See

R.C. 2903.11(D) and 2901.01(A)(9)(a). This court has explained that “if ‘felonious

assault is the underlying offense that causes the death of [a person], [then] felony murder

is the proper charge,’ and in such a case, a trial court does not err by refusing to charge

a jury on involuntary manslaughter.” State v. Lynch, 2d Dist. Montgomery No. 27620,

2018-Ohio-1424, ¶ 26, quoting State v. Brundage, 1st Dist. Hamilton No. C-030632,

2004-Ohio-6436, ¶ 12. Accord Turner, 2d Dist. Clark No. 2017-CA-78, 2019-Ohio-144,

at ¶ 41.

{¶ 32} Because Blanton’s two felonious assault counts were the only felonies

underlying the victim’s death, it was appropriate for the trial court to refuse a jury

instruction on involuntary manslaughter; felony murder was the proper charge under the

circumstances of this case. Also, instructing the jury on involuntary manslaughter as a -16-

lesser included offense of purposeful murder would have had the effect of duplicating the

felony murder charges brought against Blanton. See Turner at ¶ 41. For these

reasons, the trial court did not abuse its discretion by failing to instruct the jury on

involuntary manslaughter.

{¶ 33} We do, however, note that the trial court decided not to instruct the jury on

involuntary manslaughter for a different, erroneous reason. Specifically, the trial court

mistakenly applied a voluntary manslaughter analysis and found that an instruction on

involuntary manslaughter was not warranted because there was no evidence establishing

that Blanton shot the victim under the influence of sudden passion or sudden fit of rage

that was brought on by serious provocation occasioned by the victim. Although the trial

court’s decision to reject an involuntary manslaughter jury instruction was based on

erroneous reasoning, the trial court nevertheless reached the correct result, making the

error harmless. See State v. Rice, 2d Dist. Montgomery No. 28572, 2020-Ohio-4404,

¶ 33, citing State v. Hall, 2d Dist. Miami No. 1997-CA-22, 1997 WL 691509, *1 (Oct. 24,

1997), citing Newcomb v. Dredge, 105 Ohio App. 417, 152 N.E.2d 801 (2d Dist.1957) (“If

a trial court has stated an erroneous basis for its judgment, an appellate court will affirm

the judgment if it is legally correct on other grounds, that is, when it achieves the right

result for the wrong reasons.”).

{¶ 34} Blanton’s first assignment of error is overruled.

Second Assignment of Error

{¶ 35} Under his second assignment of error, Blanton contends that the trial court -17-

erred by adding certain language from Cutlip, 11th Dist. Lake No. 99-L-149, 2001 WL

687493, to the standard jury instruction on the affirmative defense of blackout.

Specifically, Blanton takes issue with the following language in the trial court’s jury

instruction: “The evidence must establish that the Defendant was unconscious and acted

involuntarily. A defendant’s mere failure to remember what happened does not

constitute such evidence.” Court Exhibit II, Jury Instructions, p. 15.

{¶ 36} As previously discussed, a trial court’s decision to give or exclude a

particular jury instruction is reviewed for an abuse of discretion. Fair, 2d Dist.

Montgomery No. 24388, 2011-Ohio-4454, at ¶ 65; Elliott, 2d Dist. Montgomery No. 26104,

2014-Ohio-4958, at ¶ 22. Although a trial court “has broad discretion to decide how to

fashion jury instructions,” such instructions must “present a correct, pertinent statement

of the law that is appropriate to the facts” of the case. White, 142 Ohio St.3d 277, 2015-

Ohio-492, 29 N.E.3d 939, at ¶ 46, citing Comen, 50 Ohio St.3d 206, 553 N.E.2d 640, at

paragraph two of the syllabus, and State v. Griffin, 141 Ohio St.3d 392, 2014-Ohio-4767,

24 N.E.3d 1147, ¶ 5. Whether a jury instruction correctly states the applicable law is

reviewed de novo. State v. Rac, 2019-Ohio-893, 124 N.E.3d 878, ¶ 17 (2d Dist.).

{¶ 37} In his appellate brief, Blanton contends that the trial court erred by including

the challenged language from Cutlip in its blackout defense jury instruction because he

claims that Cutlip is outdated caselaw that is not controlling in this district. While it is true

that this court is not bound to follow Cutlip, we find no issue in doing so, as Cutlip correctly

states the law as it pertains to the blackout defense, which is a recognized affirmative

defense in Ohio. State v. Ireland, 155 Ohio St.3d 287, 2018-Ohio-4494, 121 N.E.3d 285, -18-

¶ 1.

{¶ 38} The blackout defense applies where a person commits an act while

unconscious, as in a blackout, due to disease, injury, sleep, or heart failure. Ohio Jury

Instructions, CR Section 417.07, paragraph one. Under those circumstances, such act

is not a criminal offense even though it would be a crime if such act were the product of

a person’s will or volition. Id.

{¶ 39} In Cutlip, the defendant was tried and convicted for aggravated arson.

Cutlip, 11th Dist. Lake No. 99-L-149, 2001 WL 687493, at *1. On appeal from his

conviction, Cutlip argued that his trial counsel had provided ineffective assistance

because counsel failed to request a jury instruction on the defense of blackout. Id. at *5.

At trial, Cutlip testified that he did not remember setting the fire at issue and that he was

an alcoholic who had experienced blackouts ever since he was a teenager. Id. at *4.

One of the detectives who investigated the arson testified that Cutlip had informed him

that he had consumed alcohol on the night of the fire and that he was prone to blackouts.

Id. at *3. The defense also called a medical expert who testified that continuous drinking

may cause blackouts in which a person looks awake and aware of what he is doing but

does not remember anything that happened. Id. at *4.

{¶ 40} Based on the testimony presented at trial, the appellate court in Cutlip

determined that a blackout jury instruction had not been warranted and that the

defendant’s trial counsel had not provided ineffective assistance by failing to request such

an instruction. Id. at *7. The court reached this conclusion because the defendant’s

medical expert had not testified that the defendant was unconscious at any time, which -19-

was necessary to support a blackout instruction. Id. The court also found that the

defendant had simply testified that he could not remember what he did on the night in

question and that a mere failure to remember what happened did not establish that the

defendant had been unconscious and acted involuntarily for purposes of giving a blackout

defense instruction. Id. In so holding, the court stated the following:

The blackout defense is not available in every instance where the

defendant cannot remember what occurred. Blackout or unconsciousness

is a defense only where such condition is involuntary and such involuntary

condition prevented the defendant from taking action that he or she is legally

required to take under the circumstances or, possibly, in situations where

the unconsciousness or blackout prevents a defendant from forming a

specific intent. In the latter circumstance, the evidence must establish that

the defendant was unconscious and acted involuntarily. A defendant’s

mere failure to remember what happened does not constitute such

evidence.

Id.

{¶ 41} In reaching its decision, the court in Cutlip cited State v. Griffin, 10th Dist.

Franklin No. 86AP-759, 1988 WL 4651 (Jan. 19, 1988), wherein the Tenth District Court

of Appeals stated the following:

[T]he defense of blackout is available only in those instances where

the blackout prevented the defendant from acting in a normal fashion. This

would include such a situation as operation of a motor vehicle, where -20-

blackout would be a defense for losing control of the vehicle and causing

injury or death to another. Here, however, the offense is not one that could

be committed as a result of a blackout. No reflexes, convulsions, or other

involuntary bodily movements by defendant could be involved in the

conduct described by the witnesses consisting of stabbing the victim in the

back and then in the throat.

In other words, the blackout defense is more than just loss of memory

or failing to remember what occurred. Blackout or unconsciousness is a

defense only where such condition prevented the defendant from taking

action that he is legally required to take under the circumstances or,

possibly also, in situations where the unconsciousness or blackout prevents

a defendant from forming a specific intent with respect to an act which he

voluntarily performs.

Id. at *2-3.

{¶ 42} The foregoing principles from Cutlip and Griffin have been applied in recent

cases such as Turnbow v. Bagley, N.D.Ohio No. 5:08CV725, 2009 WL 4730596 (Dec. 7,

2009), and State v. Craig, 11th Dist. Lake No. 2021-L-023, 2022-Ohio-2200, ¶ 25.

Therefore, we disagree with Blanton’s claim that Cutlip is outdated caselaw. We also

find that it was appropriate for the trial court to include the challenged language from

Cutlip given that it was a correct, pertinent statement of law that applied to the facts of

this case.

{¶ 43} Blanton nevertheless argues that the language from Cutlip “gutted” his case -21-

and prejudiced him because he specifically testified that he did not remember what had

happened during the shooting. However, “ ‘[i]f from the entire charge it appears that a

correct statement of the law was given in such a manner that the jury could not have been

misled, no prejudicial error results.’ ” State v. Eng, 2d Dist. Montgomery No. 14015, 1994

WL 543277, *4 (Sept. 30, 1994), quoting State v. Hardy, 28 Ohio St.2d 89, 92, 276 N.E.2d

247 (1971). That is the case here.

{¶ 44} In this court’s view, the trial court was generous in giving the blackout

defense instruction at all, as the instruction does not appear to have been warranted from

the testimony and evidence presented at trial. By adding the language from Cutlip in the

blackout defense instruction, the trial court ensured that the jury understood that the

blackout defense did not apply simply because a defendant did not remember what

happened during the incident in question. Again, because the challenged language from

Cutlip is a correct, pertinent statement of law that applied to the facts of this case, we do

not find that the trial court erred by adding that language to the blackout defense jury

instruction.

{¶ 45} Blanton’s second assignment of error is overruled.

Third Assignment of Error

{¶ 46} Under his third assignment of error, Blanton contends that his convictions

were against the manifest weight of the evidence because he credibly testified to suffering

from a blackout, which, as previously discussed, is a recognized affirmative defense in

Ohio. See Ireland, 155 Ohio St.3d 287, 121 N.E. 285, 2018-Ohio-4494 at ¶ 1. -22-

{¶ 47} “[A] weight of the evidence argument challenges the believability of the

evidence and asks which of the competing inferences suggested by the evidence is more

believable or persuasive.” (Citations omitted). State v. Jones, 2d Dist. Montgomery No.

25724, 2014-Ohio-2309, ¶ 8. “When evaluating whether a conviction is against the

manifest weight of the evidence, the appellate court must review the entire record, weigh

the evidence and all reasonable inferences, consider witness credibility, and determine

whether, in resolving conflicts in the evidence, the trier of fact ‘clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and

a new trial ordered.’ ” Id., quoting State v. Thompkins, 78 Ohio St.3d 380, 387, 678

N.E.2d 541 (1997), citing State v. Martin, 20 Ohio App.3d 172, 175, 485 N.E.2d 717 (1st

Dist.1983).

{¶ 48} Because the trier of fact sees and hears the witnesses at trial, we must defer

to the factfinder’s decisions whether, and to what extent, to credit the testimony of

particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288, 1997 WL

476684, *4 (Aug. 22, 1997). “The fact that the evidence is subject to different

interpretations does not render the conviction against the manifest weight of the

evidence.” State v. Adams, 2d Dist. Greene Nos. 2013-CA-61 and 2013-CA-62, 2014-

Ohio-3432, ¶ 24, citing State v. Wilson, 2d Dist. Montgomery No. 22581, 2009-Ohio-525,

¶ 14. A judgment of conviction should be reversed as being against the manifest weight

of the evidence only in exceptional circumstances. Martin at 175.

{¶ 49} In this case, Blanton claims the weight of the evidence established that the

affirmative defense of blackout applied to all of his offenses and that his convictions -23-

should therefore be reversed. As previously discussed, the affirmative defense of

blackout applies when a person commits an act while unconscious, as in a blackout, due

to disease, injury, sleep, or heart failure. Ohio Jury Instructions, CR Section 417.07,

paragraph one. Under those circumstances, such act is not a criminal offense even

though it would be a crime if such act were the product of a person’s will or volition. Id.

Therefore, “blackout or unconsciousness is a defense only where such condition is

involuntary[.]” Cutlip, 11th Dist. Lake No. 99-L-149, 2001 WL 687493, at * 7. “[T]he

blackout defense is more than just loss of memory or failing to remember what occurred.”

Griffin, 10th Dist. Franklin No. 86AP-759, 1988 WL 4651, at *3; Cutlip at *7.

{¶ 50} At trial, Blanton testified that he blacked out after K.C. punched him in the

mouth and on the back of his head. Blanton testified that when he eventually came to,

he saw K.C. lying on the ground and did not remember anything that had happened during

the blackout. Although Blanton admitted that his firearm was in his hand when he came

to, he testified that he did not remember discharging his firearm.

{¶ 51} Blanton’s medical expert, Dr. Bergman, however, testified that getting hit in

the head would not have caused Blanton to blackout unless he had traumatic brain injury.

Dr. Bergman also testified that blackouts were not a symptom of PTSD, with which

Blanton had been diagnosed, and that when Blanton described his blackout to her, he

described the psychological symptoms of intermittent explosive disorder. Therefore, in

her expert opinion, Dr. Bergman testified that Blanton did not suffer from a blackout when

he shot and killed K.C., but from intermittent explosive disorder. Id.

{¶ 52} In addition to Dr. Bergman’s testimony, there was overwhelming evidence -24-

indicating that Blanton did not blackout and act involuntarily when he shot K.C.

Eyewitness Jesse Smith testified that after hearing an initial five or six gunshots, he

looked outside his window and saw Blanton standing over K.C., who was lying face down

on the ground. Smith then saw Blanton shoot K.C. five or six times in rapid succession

while aiming his firearm directly at the upper half of K.C.’s body. The evidence also

established that Blanton fired his weapon a total of 11 times during the incident and that

K.C. suffered five gunshot wounds directly to her head and no wounds to her lower

extremity. This evidence does not indicate that Blanton’s conduct was the product of

involuntary bodily movements as contemplated by the blackout defense.

{¶ 53} Based on the evidence and reasonable inferences, we do not find that the

jury lost its way and created a manifest miscarriage of justice by rejecting Blanton’s

blackout defense. The only evidence supporting the blackout defense was Blanton’s

self-serving testimony that he had blacked out and did not remember what had happened

at the time of the shooting. It was within the province of the jury to determine whether

Blanton’s testimony was credible, and the jury was “free to believe or disbelieve all or any

of the testimony.” State v. Hawkins, 2d Dist. Montgomery No. 27019, 2018-Ohio-867,

¶ 69, quoting State v. Crosky, 10th Dist. Franklin No. 06AP-655, 2008-Ohio-145, ¶ 78.

Simply because the jury chose not to believe Blanton’s testimony does not mean that the

jury’s decision was against the weight of the evidence. See State v. Matzdorff, 2d Dist.

Montgomery No. 26370, 2015-Ohio-901, ¶ 18; Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, at *4. Accordingly, Blanton’s claim that his convictions were against

the manifest weight of the evidence lacks merit. -25-

{¶ 54} Blanton’s third assignment of error is overruled.

Fourth Assignment of Error

{¶ 55} Under his fourth assignment of error, Blanton claims that he was denied a

fair trial due to his trial counsel’s providing ineffective assistance. In support of this

argument, Blanton has asserted five ineffective assistance claims, which are addressed

separately below.

Standard of Review

{¶ 56} This court reviews alleged instances of ineffective assistance of trial counsel

under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984), which has been adopted by the Supreme Court of

Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those

cases, in order to prevail on an ineffective assistance claim, Blanton must show that his

trial counsel rendered deficient performance and that counsel’s deficient performance

prejudiced him. Strickland at paragraph two of the syllabus; Bradley at paragraph two of

the syllabus. The failure to make a showing of either deficient performance or prejudice

defeats a claim of ineffective assistance of counsel. Strickland at 697.

{¶ 57} To establish deficient performance, Blanton must show that his trial

counsel’s performance fell below an objective standard of reasonable representation. Id.

at 688. In evaluating counsel’s performance, a reviewing court “must indulge in a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional -26-

assistance.” Id. at 689. “The adequacy of counsel’s performance must be viewed in

light of all of the circumstances surrounding the trial court proceedings.” State v.

Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland.

{¶ 58} To establish prejudice, a defendant must show that there is “a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204,

citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.’ ” Bradley at 142, quoting Strickland at 694.

{¶ 59} In reviewing ineffective assistance claims, we will not second-guess trial

strategy decisions. State v. Mason, 82 Ohio St.3d 144, 157, 694 N.E.2d 932 (1998);

Strickland at 689. Therefore, “ ‘trial counsel is allowed wide latitude in formulating trial

strategy[.]’ ” State v. Collins, 2d Dist. Miami No. 2010-CA-22, 2011-Ohio-4475, ¶ 15,

quoting State v. Olsen, 2d Dist. Clark No. 2009-CA-110, 2011-Ohio-3420, ¶ 121.

“Debatable strategic and tactical decisions may not form the basis of a claim for ineffective

assistance of counsel, even if, in hindsight, it looks as if a better strategy had been

available.” State v. Conley, 2015-Ohio-2553, 43 N.E.3d 775, ¶ 56 (2d Dist.), citing State

v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).

Claim 1: Insufficient Motion for Expert Assistance

{¶ 60} On October 12, 2020, Blanton filed a pretrial “Motion for Expert Assistance

of an Applied Behavioral Scientist” wherein Blanton requested that the trial court appoint -27-

Dr. Mary Melton as an expert to interview and evaluate his mental condition at the State’s

expense. The trial court denied Blanton’s request to have Dr. Melton appointed using

public funding, but indicated that Blanton could privately retain Dr. Melton as an expert.

The trial court reached this decision because it found that Blanton had failed to establish

indigence for purposes of using public funding.

{¶ 61} For his first ineffective assistance claim, Blanton contends that his trial

counsel’s representation was deficient because counsel failed to establish his indigence

for purposes of retaining Dr. Melton through public funding. In his appellate brief,

Blanton suggests that his trial counsel’s deficient performance in that regard prejudiced

him because Dr. Melton could have provided expert testimony supporting his blackout

defense. Blanton’s claim fails for at least two reasons.

{¶ 62} First, there is nothing in the record establishing that Blanton was indigent.

Although Blanton claims otherwise, he points to nothing in the record showing that he

was indigent. Without some proof of indigence in the record, we cannot say that his trial

counsel’s failure to establish his indigence amounted to deficient performance for

purposes of an ineffective assistance claim.

{¶ 63} Second, even if there had been something in the record indicating that

Blanton was indigent, it is pure speculation to say that Dr. Melton or any other expert

retained by public funding would have found that Blanton blacked out at the time of the

shooting. “It is well established that mere speculation cannot support either the deficient

performance or prejudice requirement of an ineffective-assistance claim.” State v.

Morgan, 2d Dist. Montgomery No. 27774, 2018-Ohio-3198, ¶ 16, citing State v. Short, -28-

129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 119, citing State v. Perez, 124

Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 217. Here, Dr. Melton would have

been the third expert to evaluate Blanton, and it is mere speculation to say that she would

have reached a conclusion different from the other two experts, i.e., that Blanton was not

legally insane at the time of the shooting and that he did not suffer from a blackout.

{¶ 64} For the foregoing reasons, Blanton’s first ineffective assistance claim lacks

merit.

Claim 2: Delayed and Deficient Opening Statement

{¶ 65} Blanton next claims that his trial counsel provided ineffective assistance by

delaying his opening statement until after the State completed its case-in-chief. Blanton

suggests that his counsel’s decision to delay the opening statement prejudiced him

because the jury heard the State’s case without knowing his defense. We disagree.

{¶ 66} The decision to defer an opening statement is a tactical decision that will

not ordinarily rise to the level of ineffective assistance of counsel. See State v. Tibbetts,

92 Ohio St.3d 146, 166-167, 749 N.E.2d 226 (2001). “ ‘Reserving an opening statement

at the beginning of trial has the advantage of not disclosing the defense’s trial strategy

before the prosecution presents its case.’ ” State v. Grate, 164 Ohio St.3d 9, 2020-Ohio-

5584, 172 N.E.3d 8, ¶ 144, quoting State v. Myers, 154 Ohio St.3d 405, 2018-Ohio-1903,

114 N.E.3d 1138, ¶ 189.

{¶ 67} In State v. Brown, 2d Dist. Montgomery No. 14448, 1995 WL 491091 (Aug.

8, 1995), this court explained that: -29-

Where a case against a criminal defendant is strong, as in the case

before us, it may be sound strategy to wait to see if the State and its

witnesses stumble at trial, and then pounce upon any infirmity in the State’s

proof. An opening statement that focuses upon matters that turn out at trial

not to be subject to any weakness in the State’s proof, or that promises

proofs by the defense that cannot be delivered, may operate to a

defendant’s detriment. There is the further problem that the decision

whether to call the defendant to testify is an important tactical decision that

may not be made until the completion of the State’s case. It may be difficult

to structure an opening statement without knowing whether the defendant

is going to be called to the stand to testify.

Id. at *4.

{¶ 68} In addition, we have no basis to conclude that the outcome of Blanton’s trial

would have been different if his trial counsel had provided an opening statement at the

start of trial. See State v. Lancaster, 2018-Ohio-315, 104 N.E.3d 951, ¶ 60 (2d Dist.).

Because delaying an opening statement is a matter of trial strategy, and because nothing

in the record indicates that Blanton was prejudiced by the delay, we cannot say that trial

counsel’s decision to delay his opening statement supports an ineffective assistance

claim.

{¶ 69} Blanton also argues that his trial counsel’s opening statement was deficient

because counsel told the jury that the defense was going to assert affirmative defenses,

but did not tell the jury which ones. During his opening statement, Blanton’s trial counsel -30-

generally stated that: “Ohio law provides that citizens accused of certain crimes can

assert affirmative defenses.” Trial Tr., Vol. V, p. 588. Although Blanton’s trial counsel

thereafter failed to specifically state what affirmative defense he would be presenting, we

fail to see how this prejudiced Blanton. This is because the record establishes that

Blanton’s trial counsel made it clear during closing argument that Blanton was asserting

the affirmative defense of blackout. Id. at 737-738. The jury instructions provided by

the trial court also advised the jury that Blanton was asserting the blackout defense.

Court Exhibit II, Jury Instructions, p. 14-15. Because the jury was made aware of

Blanton’s blackout defense, we cannot say that any prejudice resulted from Blanton’s trial

counsel’s failure to identify the defense during his opening statement.

{¶ 70} Lastly, Blanton claims that his trial counsel’s opening statement was

deficient because counsel conceded that Blanton had shot K.C. However, given the

overwhelming evidence of Blanton’s guilt, we find that Blanton’s trial counsel made a

rational decision to make this concession; counsel could not credibly argue that K.C. was

not shot or that it was not Blanton who shot her. The concession allowed the defense to

maintain credibility and focus the jury’s attention on why Blanton shot the victim. See

State v. Whitaker, Ohio Slip Opinion No. 2022-Ohio-2840, __ N.E.3d __, ¶ 71.

{¶ 71} During his opening statement, trial counsel discussed the fact that Blanton

suffered from PTSD, intermittent explosive disorder, and blackouts. Then, at closing

argument, Blanton’s trial counsel tied that information to Blanton’s military defense

training and the “muscle memory” he developed with that training when arguing that

Blanton involuntarily shot K.C. during a blackout. Under the circumstances of this case, -31-

this defense strategy was reasonable. “[S]imply because there might have been

‘ “another and better strategy available’ ” does not mean that counsel provided ineffective

assistance.” Id., quoting State v. Mohamed, 151 Ohio St.3d 320, 2017-Ohio-7468, 88

N.E.3d 935, ¶ 19, quoting State v. Clayton, 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 (1980).

{¶ 72} For the foregoing reasons, Blanton’s second ineffective assistance claim

lacks merit.

Claim 3: Failure to Object to Hearsay

{¶ 73} For his third ineffective assistance claim, Blanton contends that his trial

counsel performed deficiently by failing to object to certain hearsay statements at trial.

Specifically, Blanton takes issue with the fact that multiple witnesses were permitted to

testify regarding statements they heard Blanton’s son make regarding the shooting. For

example, the victim’s neighbor, Rennes Bowers, testified that Blanton’s son ran into his

arms very upset and screamed: “Why did daddy kill mommy?” and “Why did daddy shoot

mommy?” Trial Tr., Vol. IV, p. 412. Another neighbor, Denise Chestnut, also testified

that Blanton’s son was in a distressed state and repeated multiple times: “My Dad shot

my Mom, and my Mom[ is] dead.” Id. at 438-439.

{¶ 74} Under the Ohio Rules of Evidence, hearsay evidence is not admissible

except as otherwise provided by law or the rules of evidence. Evid.R. 802. Pursuant to

Evid.R. 803(2), an “excited utterance” is an admissible form of hearsay. An excited

utterance is “[a] statement relating to a startling event or condition made while the

declarant was under the stress of excitement caused by the event or condition.” Evid.R. -32-

803(2). “For a statement to be admissible as an excited utterance, four prerequisites

must be satisfied: (1) the occurrence of an event startling enough to produce a nervous

excitement in the declarant; (2) a statement made while still under the stress of excitement

caused by the event; (3) a statement related to the startling event; and (4) the declarant's

personal observation of the startling event.” State v. Abner, 2d Dist. Montgomery No.

20661, 2006-Ohio-4510, ¶ 69, citing State v. Taylor, 66 Ohio St.3d 295, 300-301, 612

N.E.2d 316 (1993); State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948,

¶ 166.

{¶ 75} Although Blanton’s trial counsel did not raise an objection to the hearsay

testimony, the matter was nevertheless discussed by the trial court. The trial court stated

that “it is very clear that [Blanton’s son] was under the influence of severe emotional

distress” and concluded that his statements were “excited utterances” since “he was

traumatized at the time.” Trial Tr., Vol. V, p. 434.

{¶ 76} We agree that the hearsay statements of Blanton’s son were admissible as

excited utterances under Evid.R. 803(2). The statements met all the prerequisites of an

excited utterance as it is clear from the record that the statements concerned the startling

event of K.C.’s shooting and were made while Blanton’s son was under severe emotional

distress from witnessing the shooting. Accordingly, we do not find that Blanton’s trial

counsel performed deficiently by failing to object to the statements, as any such objection

would have been overruled.

{¶ 77} Blanton also suggests that his trial counsel should have objected to the

hearsay statements of Blanton’s son on grounds that he was not competent to testify -33-

since he was a young child. The Supreme Court of Ohio, however, has explained that

“the inability to establish the competency of a child declarant does not affect the

admissibility of the [child’s] declarations for purposes of Evid.R. 803(2).” State v.

Wallace, 37 Ohio St.3d 87, 524 N.E.2d 466 (1988). Therefore, whether Blanton’s son

was competent to testify was irrelevant to the admissibility of the excited utterances at

issue. Accordingly, Blanton’s trial counsel did not render deficient performance by failing

to object to the hearsay statements on competency grounds.

{¶ 78} For the foregoing reasons, Blanton’s third ineffective assistance claim lacks

Claim 4: Calling Dr. Bergman as an Expert Witness

{¶ 79} For his fourth ineffective assistance claim, Blanton contends that his trial

counsel’s representation was deficient because counsel called Dr. Bergman to testify at

his trial. Blanton claims that having Dr. Bergman testify prejudiced him because she

opined that he had not blacked out when he shot K.C.

{¶ 80} “Generally, counsel’s decision whether to call a witness falls within the

rubric of trial strategy and will not be second-guessed by a reviewing court.” (Citation

omitted.) State v. Treesh, 90 Ohio St.3d 460, 490, 739 N.E.2d 749 (2001); State v.

Brown, 2d Dist. Miami No. 2002-CA-23, 2003-Ohio-2959, ¶ 9 (“whether or not to call an

expert witness is a matter of trial strategy”). As previously discussed, “[d]ebatable

strategic and tactical decisions may not form the basis of a claim for ineffective assistance

of counsel, even if, in hindsight, it looks as if a better strategy had been available.” -34-

Conley, 2015-Ohio-2553, 43 N.E.3d 775, at ¶ 56, citing Cook, 65 Ohio St.3d at 524-525,

605 N.E.2d 70.

{¶ 81} Although Dr. Bergman testified that Blanton had not suffered from a

blackout at the time he shot K.C., Blanton’s trial counsel may have believed that Dr.

Bergman’s testimony was beneficial in other respects. For example, Dr. Bergman

confirmed that Blanton reported to her that he had blacked out and did not remember

what had happened, which demonstrated consistency in Blanton’s blackout claim. Dr.

Bergman’s testimony also provided the jury with mitigating information concerning

Blanton’s background and mental health history. Specifically, Dr. Bergman testified that

Blanton had been severely behaviorally handicapped as a child, had been the victim of

sexual abuse, and had witnessed domestic violence in his home. Dr. Bergman also

testified that Blanton had been diagnosed with PTSD and intermittent explosive disorder

as an adult. Counsel may have believed that this information had the potential to

produce sympathy for Blanton and to show that Blanton was susceptible to mental health

issues such as blackouts. While counsel’s strategy to call Dr. Bergman was debatable,

it was nevertheless a legitimate strategy that cannot form the basis of an ineffective

assistance claim.

{¶ 82} For the foregoing reasons, Blanton’s fourth ineffective assistance claim

Claim 5: Failure to Request Jury Instructions on Voluntary Manslaughter and

Aggravated Assault -35-

{¶ 83} For his fifth and last ineffective assistance claim, Blanton contends that his

trial counsel’s representation was deficient because counsel failed to request jury

instructions on voluntary manslaughter and aggravated assault. We again disagree.

{¶ 84} “Voluntary manslaughter is an inferior degree of murder[.]” State v. Shane,

63 Ohio St.3d 630, 632, 590 N.E.2d 272 (1992). “Voluntary manslaughter is proscribed

in R.C. 2903.03(A), which states that ‘[n]o person, while under the influence of sudden

passion or in a sudden fit of rage, either of which is brought on by serious provocation

occasioned by the victim that is reasonably sufficient to incite the person into using deadly

force, shall knowingly cause the death of another * * *.’ ” State v. Bonaparte, 2d Dist.

Clark No. 2018-CA-61, 2019-Ohio-2030, ¶ 69. “Thus, unlike murder, voluntary

manslaughter includes the mitigating element of serious provocation by the victim

reasonably sufficient to incite the defendant into using deadly force.” Id., citing State v.

Thomas, 2d Dist. Montgomery No. 19131, 2003-Ohio-42, ¶ 17.

{¶ 85} In this case, there was no evidence presented at trial establishing that

Blanton was under the influence of sudden passion or a fit of rage at the time of the

shooting; Blanton simply testified that he blacked out during the shooting and did not

remember what happened. Absent such evidence, a voluntary manslaughter instruction

was not justified. Therefore, because Blanton’s trial counsel had no basis to request a

jury instruction on voluntary manslaughter, we cannot say that he performed deficiently

by failing to request that instruction at trial.

{¶ 86} We reach the same conclusion with regard to Blanton’s claim that his trial

counsel was ineffective for failing to request a jury instruction on aggravated assault. -36-

Aggravated assault is an inferior degree offense of felonious assault. Conley, 2015-

Ohio-2553, 43 N.E.3d 775, at ¶ 32, citing State v. Morrow, 2d Dist. Clark No. 2002-CA-

37, 2002-Ohio-6527, ¶ 7, fn. 2. “Specifically, felonious assault is reduced to aggravated

assault if the offender is ‘under the influence of sudden passion or in a sudden fit of rage

* * * brought on by serious provocation occasioned by the victim.’ ” Id. at ¶ 33, citing

R.C. 2903.12(A) and State v. Deem, 40 Ohio St.3d 205, 210-211, 533 N.E.2d 294 (1988).

Again, because there was no evidence presented at trial establishing that Blanton was

acting under sudden passion or in a fit of rage as a result of serious provocation brought

on by the victim, an aggravated assault instruction was not warranted.

{¶ 87} For the foregoing reasons, Blanton’s fifth ineffective assistance claim lacks

{¶ 88} Because all of Blanton’s ineffective assistance claims lack merit, Blanton’s

fourth assignment of error is overruled.

Conclusion

{¶ 89} Having overruled all four assignments of error raised by Blanton, the

judgment of the trial court is affirmed.

TUCKER, P.J. and LEWIS, J., concur.