State v. JonesState v. Jones
{¶1} Kathy Jones appeals her third-degree felony conviction for illegal conveyance of weapons or other prohibited items onto the grounds of a detention facility or institution, in violation of
{¶2} However,
I. FACTS
{¶3} Jones was charged with one count of illegal conveyance of weapons or other prohibited items onto the grounds of a detention facility or institution, in violation of
{¶4} Jones pleaded not guilty and the matter proceeded to trial. The jury returned a guilty verdict and the trial court sentenced her to a two year prison term. This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶5} Jones raises one assignment of error for our review:
1. “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT ENTERED A JUDGMENT OF CONVICTION AGAINST MS. JONES FOR THIRD-DEGREE FELONY ILLEGAL CONVEYANCE OF WEAPONS, DRUGS OR OTHER PROHIBITED ITEMS ONTO THE GROUNDS OF A DETENTION FACILITY OR INSTITUTION, IN VIOLATION OF
R.C. 2945.75(A)(2) , AND IN VIOLATION OF MS. JONES’ RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, AND ARTICLE I, SECTION 16, OF THE OHIO CONSTITUTION.”
III. LAW AND ANALYSIS
{¶6} Initially, Jones indicates that she did not object to the verdict forms at trial and our review confirms that fact. Nevertheless, “the Supreme Court of Ohio has recognized error, even in the absence of an objection at trial, when a verdict form fails
{¶7}
{¶8} “However,
{¶10}
(A) No person shall knowingly convey, or attempt to convey, onto the grounds of a detention facility or of an institution, office building, or other place that is under the control of the department of mental health and addiction services, the department of developmental disabilities, the department of youth services, or the department of rehabilitation and correction any of the following items:
(1) Any deadly weapon or dangerous ordnance, as defined in
section 2923.11 of the Revised Code , or any part of or ammunition for use in such a deadly weapon or dangerous ordnance;(2) Any drug of abuse, as defined in
section 3719.011 of the Revised Code ;(3) Any intoxicating liquor, as defined in
section 4301.01 of the Revised Code .* * *
(C) No person shall knowingly deliver, or attempt to deliver, to any person who is confined in a detention facility, to a child confined in a youth services facility, to a prisoner who is temporarily released from confinement for a work assignment, or to any patient in an institution under the control of the department of mental health and addiction services or the department of developmental disabilities any item listed in division (A)(1), (2), or (3) of this section.
(D) No person shall knowingly deliver, or attempt to deliver, cash to any person who is confined in a detention facility, to a child confined in a youth services facility, or to a prisoner who is temporarily released from confinement for a work assignment. (E) No person shall knowingly deliver, or attempt to deliver, to any person who is confined in a detention facility, to a child confined in a youth services facility, or to a prisoner who is temporarily released from confinement for a work assignment a cellular telephone, two-way radio, or other electronic communications device.
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(G)
(1) Whoever violates division (A)(1) of this section or commits a violation of division (C) of this section involving an item listed in division (A)(1) of this section is guilty of illegal conveyance of weapons onto the grounds of a specified governmental facility, a felony of the third degree. If the offender is an officer or employee of the department of rehabilitation and correction, the court shall impose a mandatory prison term.
(2) Whoever violates division (A)(2) of this section or commits a violation of division (C) of this section involving any drug of abuse is guilty of illegal conveyance of drugs of abuse onto the grounds of a specified governmental facility, a felony of the third degree. If the offender is an officer or employee of the department of rehabilitation and correction or of the department of youth services, the court shall impose a mandatory prison term.
(3) Whoever violates division (A)(3) of this section or commits a violation of division (C) of this section involving any intoxicating liquor is guilty of illegal conveyance of intoxicating liquor onto the grounds of a specified governmental facility, a misdemeanor of the second degree.
(4) Whoever violates division (D) of this section is guilty of illegal conveyance of cash onto the grounds of a detention facility, a misdemeanor of the first degree. If the offender previously has been convicted of or pleaded guilty to a violation of division (D) of this section, illegal conveyance of cash onto the grounds of a detention facility is a felony of the fifth degree.
(5) Whoever violates division (E) of this section is guilty of illegal conveyance of a communications device onto the grounds of a specified governmental facility, a misdemeanor of the first degree, or if the offender
previously has been convicted of or pleaded guilty to a violation of division (E) of this section, a felony of the fifth degree.
{¶11} “The illegal conveyance statute found in
{¶12} Here, the jury‘s verdict form stated:
WE THE JURY, FIND THE DEFENDANT: KATHY JONES Guilty OF: ILLEGAL CONVEYANCE OF WEAPONS OR PROHIBITED ITEMS ONTO THE GROUNDS OF A DETENTION FACILITY OR INSTITUTION IN VIOLATION OF R.C. SECTION 2921.36(A)(2).
Under
{¶13} Jones further contends that the Supreme Court of Ohio‘s decision in State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180, 891 N.E.2d 318 (Sessler III), requires
{¶14} Following Pelfrey, the Supreme Court certified a conflict between State v. Kepiro, 10th Dist. No. 06AP-1302, 2007-Ohio-4593 (Kepiro I) (Pelfry applies to the GSI statute) and State v. Sessler, 3rd Dist. Crawford No. 3-06-23, 2007-Ohio-4931 (Sessler I) (Pelfrey applies to the intimidation statute) to address whether “the holding in State v. Pelfrey, 112 Ohio St.3d 422, 860 N.E.2d 735, [is] applicable to charging statutes that contain separate sub-parts with distinct offense levels[.]” State v. Sessler, 116 Ohio St.3d 1505, 2008-Ohio-381 (Sessler II). The Court answered the question affirmatively and simply affirmed the court‘s decision in Sessler I “on the authority of State v. Pelfrey (citation omitted).” Sessler III at ¶ 1. However, the Court later declined to accept Kepiro‘s appeal for review. State v. Kepiro, 119 Ohio St.3d 1408, 2008-Ohio-3880, 891 N.E.2d 769 (Kepiro II).
{¶15} However, Sessler I is distinguishable from the facts of this case. The statute at issue in Sessler I “increased the punishment when the basic offense crime was committed in a more serious manner through the presence of additional elements or aggravating factors.” State v. Kepiro, 10th Dist. No. 09AP-19, 2009-Ohio-4654, ¶ 18 (Kepiro III). The defendant in Sessler was convicted of intimidation in violation of
A) No person shall knowingly attempt to intimidate or hinder the victim of a crime or delinquent act in the filing or prosecution of criminal charges or a delinquent child action or proceeding, and no person shall knowingly attempt to intimidate a witness to a criminal or delinquent act by reason of the person being a witness to that act.
(B) No person, knowingly and by force or by unlawful threat of harm to any person or property or by unlawful threat to commit any offense or calumny against any person, shall attempt to influence, intimidate, or hinder any of the following persons: (1) The victim of a crime or delinquent act in the filing or prosecution of criminal charges or a delinquent child action or proceeding;
(2) A witness to a criminal or delinquent act by reason of the person being a witness to that act;
(3) An attorney by reason of the attorney‘s involvement in any criminal or delinquent child action or proceeding.
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(D) Whoever violates this section is guilty of intimidation of an attorney, victim, or witness in a criminal case. A violation of division (A) of this section is a misdemeanor of the first degree. A violation of division (B) of this section is a felony of the third degree.
{¶16} The court found Sessler guilty of the felony offense, even though the verdict form did not state the degree of the offense, the statutory section upon which the jury found him guilty, or refer to the use of force or threat of harm. Sessler I at ¶ 13. Under Pelfrey, the court found that Sessler could only be found guilty of the least offense, a first-degree misdemeanor under
{¶17} Here, the jury found Jones guilty of illegal conveyance in violation of
{¶18} Nor are we confronted with a situation and statute like those in State v. McDonald, ---- Ohio St.3d ----, 2013-Ohio-5042. The statute prohibiting the failure to comply with an order or signal of a police officer,
IV. CONCLUSION
{¶19} Therefore, Sessler and Pelfrey are inapplicable and the jury‘s verdict form was sufficient to convict Jones of a third-degree felony. Accordingly, we overrule her sole assignment of error and affirm her conviction.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.