State v. Duncan ( 2014 )

[Cite as State v. Duncan, 2014-Ohio-2720.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
LOGAN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 8-12-15
v.
KEVIN DUNCAN, OPINION
DEFENDANT-APPELLANT.
Appeal from Logan County Common Pleas Court
Trial Court No. 12-03-0066
Judgment Reversed and Cause Remanded
Date of Decision: June 23, 2014
APPEARANCES:
Kenneth J. Rexford for Appellant
William T. Goslee for Appellee
Case No. 8-12-15
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Kevin Duncan (“Duncan”) brings this appeal
from the judgment of the Court of Common Pleas of Logan County finding him
guilty of one count of robbery and sentencing him to a five year prison term.
Duncan challenges the sufficiency of the verdict forms. For the reasons set forth
below, the judgment is reversed.
{¶2} On March 27, 2012, the Logan County Grand Jury indicted Duncan on
one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second
degree and one count of trafficking in drugs in violation of R.C. 2925.03(A)(1), a
felony of the fifth degree. Doc. 2. A jury trial was held on October 2 and 3, 2012.
Doc. 48. The jury heard evidence that Duncan took money and a digital recorder
from the victim and struck the victim, knocking her to the ground. Tr. 99-101.
The jury returned a verdict of guilty on the robbery charge and a verdict of not
guilty on the trafficking in drugs charge. Doc. 43 and 44. The verdict form on
count one stated as follows:
We, the jury, duly impaneled and sworn and affirmed, do
hereby find the Defendant Guilty of robbery in count One of the
indictment.
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Doc. 43. A sentencing hearing was held on October 8, 2012, and the trial court
then sentenced Duncan to a prison term of five years.1 Doc. 50. Duncan filed his
notice of appeal from this judgment on November 2, 2012. Doc. 56.
{¶3} On June 10, 2013, this court affirmed in part and reversed in part the
judgment of the trial court. State v. Duncan, 3d Dist. Logan No. 8-12-15, 2013-
Ohio-2384. On June 17, 2013, Duncan filed a motion with this court to reopen the
appeal pursuant to Appellate Rule 26(B). This court granted that motion on
September 4, 2013, and vacated the prior judgment. Duncan filed his new brief
and raises the following assignment of error.
The trial court erred by entering a judgment of conviction as to
Count I Robbery as a felony of the second degree, and
sentencing accordingly, as the verdict form was sufficient only
for the lesser offense of robbery as a felony of the third degree.
{¶4} The sole assignment of error questions the sufficiency of the verdict
form. R.C. 2945.75 sets forth the requirements of a verdict form.
(A) When the presence of one or more additional elements
makes an offense one of more serious degree:
***
(2) A guilty verdict shall state either the degree of the offense of
which the offender is found guilty, or that such additional
element or elements are present. Otherwise, a guilty verdict
constitutes a finding of guilty of the least degree of the offense
charged.
1
The judgment entry was filed on October 22, 2012.
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R.C. 2945.75. The Ohio Supreme Court has addressed what this statute means in
State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. In Pelfrey,
the defendant had been charged with tampering with records in violation of R.C.
2913.42, which required an enhanced charge of third degree felony when the
tampering involves government records. Id. at ¶3 (citing R.C. 2913.42(B)(4)).
The verdict form did not mention the degree of the offense or that the records
involved were government records. Id. at ¶4. On appeal, Pelfrey challenged his
conviction for a felony under R.C. 2945.75 claiming that he could only be
convicted of a misdemeanor due to errors in the verdict form. Id. Although the
issue had not been raised at the trial court, the appellate court held that the issue
was not waived. Id. at ¶5. The appellate court then determined that pursuant to
R.C. 2945.75, the conviction was only for the least degree of the offense and
reversed the judgment of the trial court. Id. The appellate court then certified the
case to the Supreme Court asking the following question.
Whether the trial court is required as a matter of law to include
in the jury verdict form either the degree of the offense of which
the defendant is convicted or to state that the aggravating
element has been found by the jury when the verdict
incorporates the language of the indictment, the evidence
overwhelmingly shows the presence of the aggravating element,
the jury verdict form incorporates the indictment and the
defendant never raised the inadequacy of the jury verdict form
at trial.
Id. at ¶1. The Supreme Court answered this question with a yes. Id.
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{¶5} In addressing this issue, the Supreme Court determined that the statute
was unambiguous and definite. Id. at ¶11.
The statutory requirement certainly imposes no unreasonable
burden on lawyers or trial judges. R.C. 2945.75(A) plainly
requires that in order to find a defendant guilty of “an offense *
* * of more serious degree,” the guilty verdict must either state
“the degree of the offense of which the offender is found guilty”
or state that “additional element or elements are present.” R.C.
2945.75(A)(2) also provides, in the very next sentence, what must
occur if this requirement is not met: “Otherwise a guilty verdict
constitutes a finding of guilty of the least degree of the offense
charged.” When the General Assembly has written a clear and
complete statute, this court will not use additional tools to
produce an alternative meaning.
Id. at ¶12. The Supreme Court held that “a verdict form signed by a jury must
include either the degree of the offense of which the defendant is convicted or a
statement that an aggravating element has been found to justify convicting a
defendant of a greater degree of a criminal offense.” Id. at ¶14. Regardless of the
fact that the verdict form incorporated the indictment, that the evidence was clear,
that the jury was properly instructed, and that Pelfrey had failed to raise an
objection, the Supreme Court determined that an error was made and that the
defendant could only be convicted of the least degree of the offense. Id. at ¶14-15.
{¶6} Following the lead of the Ohio Supreme Court, this court addressed a
question as to whether Pelfrey applied when discussing separate sub-parts with
distinct offense levels in State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-
Ohio-4931. In Sessler, the defendant was charged with two counts of intimidation
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in violation of R.C. 2921.04(B), felonies of the third degree. The jury found
Sessler guilty of intimidation in a “manner and form as he [stood] charged in the
indictment.” Id. at ¶13. The verdict form did not specify the degree of the offense
or set forth any aggravating elements. Id. Applying the holding in Pelfrey, this
court held that the verdict forms were insufficient to support the conviction for a
third degree felony and only supported a first degree misdemeanor, the lowest
form of the offense. Id. The fact that the verdict forms referenced the indictment
was insufficient to satisfy the requirements of R.C. 2945.75(A)(2). Id. The State
appealed this decision to the Ohio Supreme Court. The Supreme Court affirmed
this court’s decision in State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180, 891
N.E.2d 318.
{¶7} In 2009, this court again addressed the specificity required in verdict
forms in the case of State v. Schwable, 3d Dist. Henry No. 7-09-03, 2009-Ohio-
6523. Schwable was indicted on two counts of failing to comply with an order or
signal of a police officer in violation of R.C. 2921.331(B), (C)(5)(a)(ii), a felony
of the third degree. Id. at ¶1. The verdict forms both stated that Schwable had
failed to comply with an order or signal of a police officer and one stated in
addition that the operation of the vehicle caused a substantial risk of serious
physical harm to persons or property. Id. at ¶9. Neither verdict form stated the
degree of the offense or the section number of the statute that was applicable. Id.
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This court held that since the division under which Schwable was charged
contained the additional element of willfully fleeing or eluding a police officer and
the verdict form neither stated the degree of offense or addressed the aggravating
elements, Schwable could only be convicted of the least degree of the offense. Id.
at ¶20-21.
{¶8} The Supreme Court seemed to be altering this firm statutorily required
stance in its holding in State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970
N.E.2d 891. In Eafford, the defendant was charged with possession of cocaine.
Id. at ¶1. On appeal, the appellate court held that since the verdict did not state the
degree of the offense or specify that Eafford had possessed cocaine, he could only
be convicted of the least degree of the offense as set forth in Pelfrey. Id. The
State appealed the ruling. The Supreme Court determined that since the
indictment charged the defendant with possession of cocaine, the evidence proved
that fact, the trial court instructed the jury that they must determine that Eafford
possessed cocaine to find him guilty and that the verdict form referenced the
indictment, he could be found guilty of possession of cocaine even though the
verdict form did not specify the drug possessed was cocaine. Id. at ¶2-6. The
Supreme Court reached the following conclusion.
Count Two of the indictment charged Eafford with possession of
cocaine, the state provided testimony that he possessed cocaine,
and the jury returned its verdict on the only verdict form the
court submitted to it. That verdict form reflected a finding of
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guilty as charged in Count Two of the indictment, referring to
possession of cocaine. Thus Eafford has not shown that but for
the use of this verdict form, the outcome of the trial would have
been different. Had he made a timely objection, the court could
have modified the verdict form, but Eafford still would have
been found guilty of possession of cocaine, because the only
evidence in the case demonstrated his possession of cocaine, as
he did not offer any defense in this case.
Id. at ¶19. However, the Supreme Court did not address how R.C. 2945.75(A)(2)
was followed therein or how its holding in Pelfrey would affect its verdict, as was
pointed out by Justices Lanzinger and Pfeifer in the dissent. Id. at ¶21-24.
{¶9} This court has addressed how the holding in Eafford has affected that
in Pelfrey in State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853. In
Gregory, the defendant was charged with domestic violence in violation of R.C.
2919.25(A), (D)(4), a felony of the third degree. Gregory was convicted of the
offense and appealed. Id. at ¶4-5. Gregory claimed in his assignment of error that
the verdict form was insufficient under R.C. 2945.75(A)(2) to support his
conviction for a third degree felony. Id. at ¶6. When addressing the apparent
inconsistencies between the holdings in Pelfrey, and Eafford, this court stated as
follows.
Though the majority in Eafford does not mention Pelfrey, it
appears that its decision conflicts with the holding in Pelfrey. In
both cases, the defendants did not object to the verdict forms
before the trial court. In Pelfrey, the court, conscious of the
defendant’s failure to object to the verdict forms before the trial
court, stated that the requirement of R.C. 2945.75(A)(2) “cannot
be fulfilled by demonstrating additional circumstances, such as
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that the verdict incorporates the language of the indictment into
the verdict form, or by showing that the defendant failed to raise
the issue of the inadequacy of the verdict form.” * * *
Conversely, in Eafford, the court determined that the additional
circumstances enumerated in Pelfrey can save a conviction from
being reduced to the lowest degree of the offense charged even
when the verdict form does not include either the degree of the
offense or a finding concerning the aggravating element. * * *
Although the court’s decisions in Pelfrey and Eafford apparently
contradict each other, the Eafford Court did not expressly
overrule Pelfrey. Indeed, Eafford contains no reference to its
effect on Pelfrey. In light of Eafford’s silence and our strict
interpretation of R.C. 2945.75(A)(2) as required by R.C.
2901.04(A) and Pelfrey, we find that Pelfrey controls the
disposition of this matter.
Id. at ¶17-18. This court then held that a verdict form which merely stated that
Gregory was guilty of domestic violence did not comply with R.C. 2945.75(A)(2)
and resulted in plain error. Id. at ¶21. This court then reversed the conviction
finding that he could only be convicted of the least degree of the offense. Id. at
¶26.
{¶10} Recently, the Ohio Supreme Court has again addressed this issue in
State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374. In
McDonald, the defendant was indicted on and found guilty by a jury of a third
degree felony count of failure to comply with an order or signal of a police officer,
in violation of R.C. 2921.331(B) and (C)(5)(a)(ii). Id. at ¶3. The verdict form in
the case indicated that McDonald was guilty of failure to comply with order or
signal of police officer and caused a substantial risk of serious physical harm to
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person or property. Id. at ¶6. McDonald appealed the conviction arguing that the
verdict form did not set out the degree of the offense or list the aggravating
elements to elevate the offense from a misdemeanor to a felony. Id. at ¶9. The
appellate court denied the appeal and affirmed the trial court. Id. at ¶11. Noting
that its decision was in direct contradiction of that of this court in Schwable, the
appellate court certified a conflict and raised the following issue. McDonald,
supra at ¶12.
Is the inclusion of the “substantial risk of serious physical harm
to persons or property” language from R.C. 2921.331(C)(5)(a)(ii)
sufficient to sustain a third-degree-felony conviction for a
violation of R.C. 2921.331(B) when the verdict fails to set forth
the degree of the offense and also fails to reference or include
language from R.C. 2921.331(B)?
Id. The Supreme Court discussed the facts of the case in light of its prior holding
in Pelfrey, but did not address the holding in Eafford. The Supreme Court stated
that “Pelfrey makes clear that in cases involving offenses for which the addition of
an element or elements can elevate the offense to a more serious degree, the
verdict form itself is the only relevant thing to consider in determining whether the
dictates of R.C. 2945.75 have been followed.” Id. at ¶17. “In this case, which
involves a criminal statute in which the addition of certain elements enhances the
crime of failure to comply with the order or signal of a police officer, we look only
to the verdict form signed by the jury to determine whether, pursuant to R.C.
2945.75, McDonald was properly convicted of a third-degree felony.” Id. at ¶18.
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This is different from what the Supreme Court did in Eafford, where the Supreme
Court considered the indictment, the evidence, and the jury instructions as well as
the verdict. The most recent pronouncement of the Supreme Court is that nothing
outside of the verdict form should be considered in reaching a conclusion as to
whether the verdict form is sufficient to support a conviction for anything greater
than an offense of the least degree. Id. at ¶19.
{¶11} In the case before us, Duncan was charged with robbery in violation
of R.C. 2911.02(A)(2), which is a second degree felony.
(A) No person in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall do any of
the following:
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control;
(2) Inflict, attempt to inflict, or threaten to inflict physical
harm on another;
(3) Use or threaten the immediate use of force against another.
(B) Whoever violates this section is guilty of robbery. A
violation of division (A)(1) or (2) of this section is a felony of the
second degree. A violation of division (A)(3) of this section is a
felony of the third degree.
R.C. 2911.02. To raise the degree of offense for robbery from a third degree to a
second degree felony, the state must prove certain additional elements. In this
case, the State was required to prove that the defendant inflicted, attempted to
inflict, or threatened to inflict physical harm in order to satisfy subsection (A)(2),
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and obtain a conviction for a felony of the second degree. The third degree felony
only requires the State to prove that the defendant used or threatened the use of
immediate force. A robbery pursuant to R.C. (A)(3) has been determined to be a
lesser included offense of (A)(2) because the infliction, attempt to inflict or threat
to inflict physical harm requires that a defendant also use or threaten to use force.
State v. Watson, 154 Ohio App.3d 150, 2003-Ohio-4664, 796 N.E.2d 578 (8th
Dist.); State v. Bell, 8th Dist. Cuyahoga No. 87813, 2006-Ohio-6762; and State v.
Jones, 193 Ohio App.3d 400, 2011-Ohio-1717, 952 N.E.2d 513 (12th Dist.).2 Thus
the degree of offense changes upward from a third degree to a second degree
offense if the State can prove the additional factor of a threat, attempt, or infliction
of physical harm.
{¶12} The verdict form in this case, as set forth above, did not specify the
degree of the offense and did not state the additional element that would allow this
offense to be a second degree felony rather than a third degree felony. This is a
requirement of R.C. 2945.75(A)(2). Pelfrey, supra. This court may only consider
the language of the verdict form to determine the statutory compliance.
McDonald, supra at ¶18 and R.C. 2945.75(A)(2). Thus, pursuant to the holdings
of the Ohio Supreme Court in Pelfrey and McDonald, as well as the “clear and
2
This court recognizes that the 10th District has indirectly held that a violation of (A)(3) is not a lesser
included offense of (A)(2) by finding that they are separate, distinct offenses. State v. Brown, 10th Dist.
Franklin Nos. 10AP-836, 10AP-845, 2011-Ohio-3159. The dissent cites to several other cases, however,
they focus on different statutes and address issues outside of the verdict form.
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complete” statute, R.C. 2945.75(A)(2), the verdict form in this case does not meet
the statutory requirements of R.C. 2945.75(A)(2). The language of the statute
clearly states that if the degree of the offense is not set forth in the verdict form or
if such additional element/elements which makes/make an offense one of more
serious degree is/are not listed, then the remedy is that the defendant may only be
convicted of the least degree of the offense. Therefore, Duncan can only be
convicted of robbery as a felony of the third degree in this case. The assignment
of error is sustained.
{¶13} Having found error prejudicial to the Appellant, the judgment of the
Court of Common Pleas of Logan County is reversed and the matter is remanded
for further proceedings in accord with this opinion.
Judgment Reversed and
Cause Remanded
ROGERS, J., Concurring separately.
{¶14} I concur with the result reached by the majority in this case.
However, I write separately to express my dismay by the dissent’s reliance on
State v. Brown, 10th Dist. Franklin Nos. 10AP-836, 10AP-845, 2011-Ohio-3159,
an opinion that is unpersuasive and inconsistent with this court’s own precedent,
and the dissent’s erroneous consideration of matters outside of the verdict form to
determine that there is no plain error.
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{¶15} I must first state that I am appalled by the lack of legal acuity that
allows this issue to reoccur after seven years of discussion and judicial opinions
addressing it. This issue could, and should, have been eliminated during the
preparation of the verdict form by simply adding a few words. We can hope that
in the future prosecutors and trial courts will carefully review the verdict form
before submitting it to the jury and that such lapses will not be repeated.
{¶16} The dissent has placed an inordinate amount of importance on the
term “additional elements” and has argued that the various subsections of the
robbery statute do not contain “additional elements,” but rather each subsection
specifies a different offense. To support its position, the dissenting opinion relies
on the Tenth District’s opinion in Brown, an opinion which is both unpersuasive
and inconsistent with this court’s precedent.
{¶17} The court in Brown reasoned that Pelfrey does not apply to a verdict
form for a robbery conviction under R.C. 2911.02 because each subsection of the
statute “creates a separate offense and has a separate penalty. * * * There are no
additional elements or attendant circumstances, unlike the statute in Pelfrey, that
can increase the degree of the offense or the penalty.” Brown, 2011-Ohio-3159, ¶
13.
{¶18} This characterization of R.C. 2911.02 is in conflict with the recent
ruling in State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042. In McDonald,
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the statute at issue contained the essential elements of two separate and distinct
offenses of failing to comply with the order of a police officer, however, “[t]he
only path to a felony conviction for failure to comply with the order or signal of a
police officer is through R.C. 2921.331(B).” (Emphasis added.) Id. at ¶ 22.
While the verdict form did not specify the elements of either path, it did specify
the additional finding that would have been necessary to elevate the offense from a
misdemeanor to a felony. Id. at ¶ 25. The Court noted:
If the jury had believed that McDonald had simply failed to comply
with the order of Officer Runyon but did not see or hear the signal or
intentionally flee him, but in failing to comply managed to create a
substantial risk to injury to persons or property, the very verdict
form used in this case would have fit that conclusion. And that
conclusion would have yielded a misdemeanor, because it would
have reflected only a violation of R.C. 2921.331(A).
Id. at ¶ 24. As the court could not tell from the verdict form which path the jury
chose, McDonald could only be found guilty of the least form of the offense. Id.
at ¶ 25.
{¶19} Here, R.C. 2911.02 plainly states:
(A) No person, in attempting or committing a theft offense or in
fleeing immediately after the attempt or offense, shall do any of the
following:
(1) Have a deadly weapon on or about the offender’s person or
under the offender’s control;
(2) Inflict, attempt to inflict, or threaten to inflict physical harm on
another;
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(3) Use or threaten the immediate use of force against another.
(B) Whoever violates this section is guilty of robbery. A violation
of division (A)(1) or (2) of this section is a felony of the second
degree. A violation of division (A)(3) of this section is a felony of
the third degree.
R.C. 2911.02(A) criminalizes one offense, robbery, but it creates different paths
for the jury to find the defendant guilty of the robbery offense depending on the
attendant circumstances surrounding an offender’s conviction. If the attendant
circumstances listed in R.C. 2911.02(A)(1) or (2) are present, then R.C.
2911.02(B) states that the offender is guilty of a second degree felony.
Conversely, if the attendant circumstance listed in R.C. 2911.02(A)(3) is present,
then R.C. 2911.02(B) states that the offender is merely guilty of a third degree
felony. Based on these dynamics, R.C. 2911.02 clearly refers to two different sets
of attendant circumstances that vary the degree of felony and Brown’s statement to
the contrary should be disregarded. The opinion in Brown also completely ignores
the issue that a robbery committed pursuant to R.C. 2911.02(A)(3) is a lesser
included offense of R.C. 2911.02(A)(2), and that the presence of an additional
attendant circumstance is what will elevate the offense. See Majority Opin., ¶ 11.
{¶20} In addition to Brown’s flawed reasoning, Brown is inconsistent with
this court’s own precedent. In State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-
Ohio-5233, we found that Pelfrey applied to a verdict form finding the defendant
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guilty of R.C. 2911.123, which has a similar statutory framework as R.C. 2911.02.
Id. at ¶ 61. We have also found that Pelfrey applied to a verdict form finding the
defendant guilty of R.C. 2921.04, which also has a similar statutory structure as
R.C. 2911.02. State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-Ohio-4931, ¶
13, aff’d 119 Ohio St.3d 9, 2008-Ohio-3180. Therefore, the dissent’s reliance on
Brown is misplaced.
{¶21} Further, the dissent states “assuming somehow that there were
additional elements or attendant circumstances to consider in the verdict form, I
3
R.C. 2911.22, in relevant part, states:
(A) No person, by force, stealth, or deception, shall do any of the following:
(1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
occupied structure, when another person other than an accomplice of the offender is present, with
purpose to commit in the structure or in the separately secured or separately occupied portion of
the structure any criminal offense;
(2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
occupied structure that is a permanent or temporary habitation of any person when any person
other than an accomplice of the offender is present or likely to be present, with purpose to commit
in the habitation any criminal offense;
(3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
occupied structure, with purpose to commit in the structure or separately secured or separately
occupied portion of the structure any criminal offense.
***
(D) Whoever violates division (A) of this section is guilty of burglary. A violation of division (A)(1)
or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section
is a felony of the third degree.
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would apply Eafford to this case over Pelfrey or McDonald.”4 Dissent Opin., ¶ 22.
The dissent then looks at the indictment, the evidence presented at trial, and
closing arguments to determine that there was no plain error in this matter,
something that is expressly and unambiguously prohibited by the Ohio Supreme
Court. See State v. McDonald, 2013-Ohio-5042, ¶ 17 (“Pelfrey makes clear that in
cases involving offenses for which the addition of an element or elements can
elevate the offense to a more serious degree, the verdict form itself is the only
relevant thing to consider in determining whether the dictates of R.C. 2945.75
have been followed.”); Pelfrey, 2007-Ohio-256, ¶ 14 (“The express requirement
of [R.C. 2945.75] cannot be fulfilled by demonstrating additional circumstances,
such as the verdict incorporates the language of the indictment, or by presenting
evidence to show the presence of the aggravated element at trial or the
incorporation of the indictment into the verdict form * * *.”).
{¶22} The Ohio Supreme Court in Pelfrey and McDonald instruct us we
cannot go outside of the verdict form to determine which form/degree of the
offense has been found. Since almost every case the dissent cites to looks outside
the verdict form to determine the level of the offense, I do not find those cases
persuasive. Therefore, because we cannot determine from the verdict form which
4
In State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853, the dissenting opinion heavily
criticized the majority opinion for using an “apparent personal preference for the Pelfrey decision” and
stated that it was not aware of any “legal basis for an intermediate court of appeals taking such a position
with regard to the most recent decision of the Ohio Supreme Court * * *.” Id. at ¶ 34. However, in the case
sub judice, the dissent appears to have a personal preference for the Eafford decision and chooses to ignore
the most recent decision of the Ohio Supreme Court, McDonald.
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subsection applies, we can only authorize a conviction on the least degree of the
offense.
SHAW, J., Dissents.
{¶23} I respectfully dissent. The decision of the majority is in direct
conflict with decisions of the Second, Fourth, Fifth, Ninth, Tenth and Eleventh
District Courts of Appeals, all of which have concluded that R.C. 2945.75 and the
Pelfrey decision do not apply to criminal statutes, including the one before us,
where there are no “additional elements” that can increase the degree or the
penalty for the stated offense. As these decisions demonstrate, the analysis of the
majority in this case is flawed in presuming that the various subsections (1), (2),
and (3) of Ohio’s Robbery statute, R.C. 2911.02(A), merely set forth enhanced
additional elements of some least serious form of Robbery, when in fact, each of
those subsections sets forth an entirely separate and distinct offense of Robbery,
each with its own unique set of elements necessary to constitute that particular
offense.
{¶24} In State v. Brown, 10th Dist. No. 10AP-836, 10AP-845, 2011-Ohio-
3159, the Tenth District Court of Appeals considered the exact question before
this court and determined that an essentially identical verdict form dealing with
R.C. 2911.02(A)(2) did not violate R.C. 2945.75 or Pelfrey. Because I would
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apply the Tenth District’s unanimous analysis in the case before us, I quote from it
at length.
Brown raises this challenge in connection with his conviction for
the second-degree felony form of robbery, R.C. 2911.02(A)(2).
The jury signed a verdict form for that count which read, in
pertinent part: “[w]e the jury find defendant, Paul R. Brown
GUILTY OF ROBBERY, as he stands charged in * * * the
Indictment.” Brown was indicted under R.C. 2911.02(A)(2) and
(3). The verdict form does not contain the degree of the offense
or any statement of an aggravating element. Based upon Pelfrey,
Brown contends that he can be convicted only of the least degree
of the offense. We disagree.
R.C. 2911.02(A) prohibits three different kinds of conduct while
the offender is attempting or committing a theft offense, or in
fleeing immediately thereafter the attempt or offense: (1) have a
deadly weapon on the offender’s person; (2) inflict, attempt to
inflict, or threaten to inflict physical harm on another; or (3) use
or threaten the immediate use of force against another. Each
provision creates a separate offense and has a separate penalty.
R.C. 2911.02(B). There are no additional elements or attendant
circumstances, unlike the statute in Pelfrey, that can increase the
degree of the offense or the penalty. Therefore, Brown’s
reliance on Pelfrey is misplaced. See State v. Kepiro, 10th Dist.
No. 06AP–1302, 2007–Ohio–4593, ¶ 33–34 (distinguishing
Pelfrey in similar manner in analyzing verdict form for violation
of R.C. 2907.05); State v. Crosky, 10th Dist. No. 06AP655, 2008–
Ohio–145, ¶ 143–53.
Here, the verdict form did not need to include the degree of the
offense or a statement that an aggravating element has been
found by the jury because R.C. 2911.02(A)(2) is a separate and
distinct offense with its own penalty. Accordingly, the verdict
form did not violate R.C. 2945.72 and we overrule Brown’s
second assignment of error.
Brown, ¶¶ 12-14.
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{¶25} The Tenth District’s decision in Brown makes clear that where no
additional elements are present to enhance a crime, reliance on Pelfrey is
misplaced. This is consistent with R.C. 2945.75, as R.C. 2945.75 is only
applicable by its own language “[w]hen the presence of one or more additional
elements makes an offense one of more serious degree[.]” (Emphasis added.)
R.C. 2945.75(A). The statute, by its own language, does not apply to the essential
elements of a crime. As the Tenth District stated in Brown there are no “additional
elements” in R.C. 2911.02. The elements of each different Robbery subsection are
separate and distinct offenses, containing only the essential elements. Therefore,
Pelfrey is not applicable to R.C. 2911.02(A)(2).
{¶26} Brown’s holding is not unique regarding the inapplicability of
Pelfrey and R.C. 2945.75 to certain statutes. It is consistent with numerous
decisions from other Ohio Appellate Districts wherein Pelfrey and/or R.C.
2945.75 have been found not to be applicable to various statutes where there are
no additional elements and where, as here, statutory subsections actually constitute
entirely separate offenses, each with their own unique set of elements.
{¶27} See, for example: State v. Edwards, 9th Dist. Lorain No.
12CA010274, 2013-Ohio-3068, ¶¶ 35-36 (holding “[a] violation of R.C.
2907.05(A)(4) [Gross Sexual Imposition] is a felony of the third degree. * * *
There are no additional elements that will enhance this offense to a higher degree.
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R.C. 2907.05 does contain other subsections, but each has their own separate
elements[.]” Therefore, Pelfrey does not apply to R.C. 2907.05(A)(4).); State v.
Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶ 30 (finding Pelfrey
inapplicable to R.C. 2905.01 [Kidnapping] because “no aggravating or additional
element must be proved by the State to elevate kidnapping to a felony of the first
degree” rather “the defendant bears the burden of establishing the existence of a
mitigating factor which might reduce the offense level.”); State v. Reynolds, 5th
Dist. Richland No. 09-CA-13, 2009-Ohio-3998, ¶¶ 43-45 (holding “R.C. 2921.36,
[Prohibited conveying of certain items onto property of state facilities] which
Appellant was convicted under, prohibits different kinds of conduct * * *
[therefore] [t]here is no enhancement necessary” and Pelfrey/R.C. 2945.75 do not
apply); State v. Jones, 4th Dist. Adams No. 13CA960, 2013-Ohio-5889, ¶¶ 11, 17
(holding “[t]he illegal conveyance statute found in R.C. 2921.36 is a statute in
which each division stands alone. * * * Merely because there are different levels
of offenses contained within one statute does not mean that the statute is subject to
the language of R.C. 2945.75” and therefore Pelfrey is not applicable) (Emphasis
added.) (Citation omitted); State v. Norman, 4th Dist. Ross No. 08CA3059, 2009-
Ohio-5458, ¶ 62 (holding, “Aggravated Robbery under R.C. 2911.01 does not
have multiple degrees of seriousness. For this reason, R.C. 2911.01 differs from
the statutes addressed in Pelfrey[.] * * * All offenses under R.C 2911.01 are
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felonies of the first degree. * * * Therefore, * * * (1) R.C. 2945.75(A)(2) and
Pelfrey do not apply to the present case; and (2) the verdict form did not have to
include the degree of the offense or any aggravating elements to justify a
conviction for Aggravated Robbery.”); State v. Nethers, 5th Dist. Licking No.
07CA78, 2008-Ohio-2679 (finding Pelfrey did not apply to R.C. 2907.05(A)(4),
Gross Sexual Imposition, as there are no additional elements); State v. Hill, 10th
Dist. Franklin No. 09AP-398, 2010-Ohio-1687, ¶ 35 (holding “[a]bsent any
degree-enhancing elements, Felonious Assault [in violation of R.C. 2903.11(D)] is
a felony of the second degree” and R.C. 2945.75/Pelfrey are not applicable); State
v. Randles, 9th Dist. Summit No. 26629, 2013-Ohio-4681, ¶ 9 (holding
“that Pelfrey is inapplicable with respect to violations of Section
2907.02(A)(1)(b),” [Rape]). See also State v. Vance, 2d Dist. Montgomery No.
16322, 1997 WL 736496 (Nov. 26, 1997) (holding “[i]n gross sexual imposition
as charged and indicted in this case under 2907.05(A)(3), the age of the victim is
an essential element. It is not an additional element”); State v. Brady, 2d Dist.
Montgomery No. 18682, 2001-Ohio-1445, (holding R.C. 2945.75 “is not
applicable when an individual is indicted for Aggravated Burglary under R.C.
2911.11(A) [because] [t]here [are] no “additional elements [which] make[] [the]
offense one of more serious degree.”); State v. Poling, 11th Dist. Trumbull No. 88-
T-4112, 1991 WL 84229 (May 17, 1991) (holding “although the two types of
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Abuse of a Corpse defined under R.C. 2927.01(A) and (b) differ in degree, they
are not distinguishable by the existence of the one additional element referred to in
R.C. 2945.75(A)(2). Instead, the two types of abuse contain different elements * *
* [t]hus, R.C. 2945.75(A)(2) is not applicable in this situation.”); State v.
Alderman, 4th Dist. Athens No. CA 1433, 1990 WL 253034 (Dec. 11, 1990)
(holding “[Gross Sexual Imposition in violation of R.C. 2907.05(A)(3)] is always
a felony of the third degree. There are no additional elements which raise or lower
the penalty for that section. Each crime entails a unique element, not an additional
element. Therefore, R.C. 2945.75 is not applicable.”).
{¶28} In formulating a decision that runs contrary to the foregoing case
law, the majority cites to State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180. In
Sessler, the Ohio Supreme Court was presented with the question as to whether
Pelfrey is “applicable to charging statutes that contain separate sub-parts with
distinct offense levels?” Without opinion or any explanation, the Ohio Supreme
Court answered this question in the affirmative under the authority of Pelfrey.
State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180.5
{¶29} I share some of the obvious frustration noted by the majority over the
fact that the Ohio Supreme Court has released decisions after Pelfrey, including
5
While there was no written opinion by the majority, there was a written dissent.
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Case No. 8-12-15
Eafford, McDonald6 and Sessler, which appear to summarily modify, contradict or
in the case of Sessler, perhaps confirm key aspects of the Pelfrey decision - all
without directly addressing any of the above. In this regard, it does not appear that
anyone, including the Ohio Supreme Court, has a satisfactory explanation for the
Sessler language.
{¶30} Nevertheless, the confusion or lack of clarity created by the Ohio
Supreme Court with regard to the Pelfrey decision or even the unexplained,
summary ruling in Sessler should not prevent us from recognizing that the case
before us does not present a Pelfrey issue in the first place. Clearly, the other
appellate districts in Ohio would seem to agree and I would note in particular, that
a number of these decisions including Brown, Anderson, Hill, Norman, Reynolds,
Randles, Jones and Edwards, supra, were released after Sessler,7 and still found
6
The concurring opinion relies heavily on the Ohio Supreme Court’s recent decision in State v. McDonald,
137 Ohio St.3d 517, 2013-Ohio-5042. The statute at issue in McDonald, R.C. 2921.331, is clearly
distinguishable from the statute in this case. In McDonald the statute specifically required additional fact-
finding by the jury in order to elevate the offense from a misdemeanor to a felony, thus clearly mandating
the application of R.C. 2945.75 with regard to verdict forms. No such additional elements or “additional
fact-finding” is required under the statute before us making McDonald just as inapplicable to this case as
Pelfrey. See State v. Jones, 4th Dist. Adams No. 13CA960, 2013-Ohio-5889, ¶¶ 16-18 (wherein the Fourth
District Court of Appeals distinguished McDonald on the basis that the verdict form in McDonald required
additional elements, whereas the statute at issue in Jones, R.C. 2921.36, did not. The Fourth District
specifically found that a statute containing separate and distinct offense levels, like the statute before us,
does not warrant the application of Pelfrey or McDonald. Id. at ¶¶ 9, 18.); see also State v. Anderson,
supra.7
Nethers, which we also cited, was released just before Sessler; however the analysis in Nethers was cited
in a later opinion discussing the same issue when the case was back up for appeal. State v. Nethers, 5th
Dist. Licking No. 10-CA-94, 2011-Ohio-1317, ¶¶ 12-20. Although the same analysis was cited by majority
in Nethers II, the issue was ultimately decided based on the doctrine of res judicata. Id. at ¶ 21.
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Pelfrey inapplicable where a statutory subsection contains only essential elements,
and no “additional” elements.8
{¶31} Based on the foregoing authority and analysis, I would find that the
verdict form in this case does not invoke an issue under either R.C. 2945.75 or the
Pelfrey decision as there are no “additional elements” in the statutory subsection
before us.9 However, even assuming somehow that there were additional elements
or attendant circumstances to consider in the verdict form, I would apply Eafford
to this case over Pelfrey or McDonald. The majority addresses and summarizes all
three of these cases in its opinion, so I will not reiterate them here. For the sake of
brevity, I will simply say that the indictment in this case contained the appropriate
language of the offense and that language was incorporated into the verdict form.
All of the evidence at trial and the closing arguments carefully addressed the
elements at issue. As a result, I would find that, under Eafford, there was no plain
error in these circumstances. See State v. Gregory, 3d Dist. Hardin No. 6-12-02,
2013-Ohio-853, ¶¶ 29-41 (Shaw, J. dissenting).
8
In fact, Edwards and Jones discussed Sessler and still found Sessler and Pelfrey/R.C. 2945.75
inapplicable to the statute in those cases.
9
Finally, I would note in passing that the approach adopted by the majority today in failing to recognize the
difference between “additional elements” which enhance the degree of the least form of the offense and the
“unique set of elements for separate offenses in each subsection” in many of Ohio’s criminal statutes could
be somewhat problematic to interpret in future cases. For example, if a charge of Robbery under section
(A)(1) of R.C. 2911.02, which requires only the theft offense and a deadly weapon with no evidence of
force or threat of force, were to be ruled a Pelfrey violation for failure of the verdict form to specify the
deadly weapon, there is no “least degree of the offense of Robbery” conforming to the remaining
subsections of the statute and under our decision today, the only crime stated by the verdict form in such a
case would be that of petty theft. Such a ruling would itself seem to violate both the Pelfrey decision and
the express language of R.C. 2945.75.
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{¶32} I would affirm the judgment of the trial court.
/jlr
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