State v. DuncanState v. Duncan
{¶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
We, the jury, duly impaneled and sworn and affirmed, do hereby find the Defendant Guilty of robbery in count One of the indictment.
{¶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
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.
(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.
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.
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
{¶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
{¶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
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
{¶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
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 asthat 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 byR.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
{¶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
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 ofR.C. 2921.331(B) when the verdict fails to set forth the degree of the offense and also fails to reference or include language fromR.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
{¶11} In the case before us, Duncan was charged with robbery in violation of
(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.
{¶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
{¶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.
{¶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
{¶18} This characterization of
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,
(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.
{¶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
{¶21} Further, the dissent states “assuming somehow that there were additional elements or attendant circumstances to consider in the verdict form, I
{¶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
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
{¶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
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 underR.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 ofR.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 violateR.C. 2945.72 and we overrule Brown‘s second assignment of error.
{¶26} Brown‘s holding is not unique regarding the inapplicability of Pelfrey and
{¶27} See, for example: State v. Edwards, 9th Dist. Lorain No. 12CA010274, 2013-Ohio-3068, ¶¶ 35-36 (holding “[a] violation of
{¶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
{¶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
{¶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
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Notes
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.