THE STATE OF OHIO, APPELLEE, v. MAYS, APPELLANT.
No. 2023-0839
SUPREME COURT OF OHIO
September 25, 2024
2024-Ohio-4616
FISCHER, J.
Certified by the Court of Appeals for Lucas County, No. L-21-1228, 2023-Ohio-1908. Submitted March 12, 2024.
NOTICE
This slip opinion is subject to formal revision before it is published in an advance sheet of the Ohio Official Reports. Readers are requested to promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.
SLIP OPINION NO. 2024-OHIO-4616
[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State v. Mays, Slip Opinion No. 2024-Ohio-4616.]
Criminal law—
FISCHER, J.
{¶ 1} In this case, we are asked to determine whether a verdict form‘s reference to the statutory section or sections mandating that a defendant be convicted of a higher-level offense constitutes compliance with
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 2} Appellant, Mario D. Mays, was charged with multiple offenses, including violating a protection order under
{¶ 3} The Sixth District Court of Appeals affirmed Mays‘s conviction and sentence in a two-to-one decision. 2023-Ohio-1908, ¶ 73 (6th Dist.). In one of his assignments of error on appeal, Mays argued that the verdict form was insufficient to convict him of a fifth-degree felony because it contained no reference to the level of the offense or any aggravating factors that raise the level of the offense, contrary to the requirement of
{¶ 5} The dissenting opinion in the court of appeals emphasized that the verdict form in Mays‘s case contains no statement of the degree of the felony and does not state the additional element or elements present to increase the degree of the offense. Id. at ¶ 87 (Zmuda, J., dissenting). It noted that
{¶ 6} The Sixth District noted that its decision conflicted with State v. Gregory, 2013-Ohio-853 (3d Dist.), in which the Third District Court of Appeals held that a reference to the statutory section will not satisfy
Can the requirement in
R.C. 2945.75(A)(2) that a “guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional [aggravating] element or elements are present” be satisfied by a verdict form that cites the statutory sections, permitting the defendant to be convicted of the higher-level offense?
(Bracketed text in original.) 2023-Ohio-3100.
II. ANALYSIS
{¶ 7} The legal issue before us in this case is straightforward: When a verdict form contains no reference to the degree of the offense and does not list the additional elements present that require the offense level to be raised but instead cites the statutory section that requires the degree of the offense to be raised in certain circumstances, may the level of the offense be properly elevated in compliance with
A. The verdict form satisfied R.C. 2945.75(A)(2) in this case
{¶ 8}
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.
{¶ 9} We revisited the requirements of
{¶ 10} This court again considered
{¶ 11} The certified conflict in this case indicates that some confusion exists about the application of this court‘s decisions concerning
{¶ 12} The Sixth District below concluded that the Third District‘s analysis in Gregory was “questionable.” 2023-Ohio-1908 at ¶ 57 (6th Dist.). In so concluding, the Sixth District reasoned that our holding in Pelfrey forbids looking outside the verdict form to determine whether
(A) No person shall recklessly violate the terms of any of the following:
(1) A protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code;
. . . .
(B)(1) Whoever violates this section is guilty of violating a protection order.
. . . .
(3) Violating a protection order is a felony of the fifth degree if the offender previously has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for any of the following:
(a) A violation of a protection order issued or consent agreement approved pursuant to section 2151.34, 2903.213, 2903.214, 2919.26, or 3113.31 of the Revised Code;
(b) Two or more violations of section 2903.21, 2903.211, 2903.22, or 2911.211 of the Revised Code, or any combination of those offenses, that involved the same person who is the subject of the protection order or consent agreement;
(c) One or more violations of this section.
{¶ 14} Although the verdict form does not contain the magic words “the offense is a felony of the fifth degree,” we conclude that the verdict form in this case complies with
{¶ 15} This conclusion is consistent with our holding in Pelfrey. In Pelfrey, this court emphasized that
[T]his court will not excuse the failure to comply with the statute or uphold Pelfrey‘s conviction based on additional circumstances such as those present in this case. The express requirement of the statute cannot be fulfilled by demonstrating additional circumstances, such as that 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, or by showing that the defendant failed to raise the issue of the inadequacy of the verdict form.
Id. In this case, while we conclude that the verdict form complies with
{¶ 16} Mays argues that the citation to
{¶ 17} For these reasons, we answer the certified conflict question in the affirmative and hold that the requirement in
{¶ 18} We further conclude that, even if the jury‘s verdict form contained an error, Mays‘s conviction must be affirmed because he failed to show plain error.
{¶ 19} As noted above, both the majority and dissenting opinions in the court of appeals concluded that plain-error review is inappropriate in these types of cases, rejecting without explanation the approach set forth by this court in Eafford and instead reviewing de novo. See 2023-Ohio-1908, at ¶ 53 (6th Dist.); id. at ¶ 76 (Zmuda, J., dissenting). This approach could be viewed as following Pelfrey, in which this court stated that “[t]he express requirement of [
{¶ 20} But we did not expressly disclaim application of plain-error analysis in Pelfrey. Instead, we merely explained that a defendant‘s failure to object to the verdict form does not automatically cure any noncompliance with
{¶ 21} Five years after Pelfrey was decided, this court explicitly stated that a plain-error analysis applies to this exact situation. See Eafford, 2012-Ohio-2224, at ¶ 11. In Eafford, the language in a verdict form found the defendant guilty of an offense as charged in the indictment but did not state the degree of the offense or the additional element or elements present. Id. at ¶ 18. Following our reasoning in Pelfrey, the appellate court in Eafford had determined that incorporating the indictment into the language of the verdict form was insufficient on its own to comply with
{¶ 22} We note that in McDonald this court, without conducting a plain-error analysis, reversed a conviction for failure to comply with
{¶ 23} Lower courts have indicated that our decisions in Pelfrey, Eafford, and McDonald have generated some confusion regarding whether plain-error analysis applies when a defendant fails to object to a verdict form‘s noncompliance with
{¶ 24} In affirming our holding in Eafford, we note that other state supreme courts also apply plain-error analysis when reviewing alleged deficiencies in verdict forms. See People v. Caffey, 205 Ill.2d 52, 120 (2001) (applying plain-error analysis when a verdict form omitted some elements of the crime); Stewart v. State,
{¶ 25} We further note that Mays had the burden of objecting to the verdict form in this case. When a trial court‘s error results in a lesser punishment for the defendant and accordingly prejudices the State, the State bears the burden of objecting and calling the trial court‘s attention to the error. See State v. Breaston, 83 Ohio App.3d 410, 413 (10th Dist. 1993); State v. Lacey, 2006-Ohio-4290, ¶ 33-34 (5th Dist.); State v. Goodwin, 2008-Ohio-378, ¶ 21 (9th Dist.). On the other hand, when a trial court‘s error results in a greater punishment for the defendant and accordingly prejudices the defendant, the defendant bears the burden of objecting and calling the trial court‘s attention to the error. See Eafford, 2012-Ohio-2224, at ¶ 11-12; State v. Gleason, 110 Ohio App.3d 240, 248 (9th Dist. 1996) (“the errors that a defendant is required to object to in the trial court are those that prejudice him” [emphasis in original]).
{¶ 26} In this case, the verdict form‘s alleged failure to comply with
{¶ 27} Under plain-error review, three elements must be met in order to find reversible error. There must first be a deviation from a legal rule, that deviation
III. CONCLUSION
{¶ 28} We answer the certified-conflict question in the affirmative and hold that the requirement in
Judgment affirmed.
I. INTRODUCTION
{¶ 29} After a jury trial, the jury rendered a verdict finding appellant, Mario D. Mays, guilty of “Violating a Protection Order, in violation of
{¶ 30} The majority‘s decision now concludes that even though the verdict form did not explicitly comply with
{¶ 32} The majority‘s decision effectively adds language to the statute and places the burden on a defendant to act against his or her own interest by raising an objection that increases the defendant‘s criminal exposure. I respectfully dissent.
II. FACTS AND PROCEDURAL HISTORY
{¶ 33} I adopt the statement of facts and procedural history as set forth in the majority opinion.
III. ANALYSIS
A. Compliance with R.C. 2945.75(A)(2)
{¶ 34} It is undisputed that Mays was found guilty of violating a protection order under
(A) No person shall recklessly violate the terms of any of the following:
(1) A protection order issued or consent agreement approved pursuant to section 2919.26 or 3113.31 of the Revised Code[.]
(1) Whoever violates this section is guilty of violating a protection order.
(2) Except as otherwise provided in division (B)(3) or (4) of this section, violating a protection order is a misdemeanor of the first degree.
(3) Violating a protection order is a felony of the fifth degree if the offender previously has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for any of the following:
(a) A violation of a protection order issued or consent agreement approved pursuant to section 2151.34, 2903.213, 2903.214, 2919.26, or 3113.31 of the Revised Code;
(b) Two or more violations of section 2903.21, 2903.211, 2903.22, or 2911.211 of the Revised Code, or any combination of those offenses, that involved the same person who is the subject of the protection order or consent agreement;
(c) One or more violations of this section.
(4) If the offender violates a protection order or consent agreement while committing a felony offense, violating a protection order is a felony of the third degree.
A violation of this statute is a misdemeanor unless an additional element specified in (B)(3)(a), (B)(3)(b), (B)(3)(c), or (B)(4) is factually found.
{¶ 35} The legislature has enacted
(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.
{¶ 36} We have significantly addressed
Pelfrey‘s offense of tampering with records would have constituted a misdemeanor under
R.C. 2913.42(B)(2)(a) but for the additional element that the records at issue were government records, a circumstance that elevates the crime to a third-degree felony underR.C. 2913.42(B)(4) . However, neither the verdict form nor the trial court‘s verdict entry mentions the degree of Pelfrey‘s offense; nor do they mention that the records involved were government records. [R.C. 2945.75 ] provides explicitly what must be done by the courts in this situation: the “guilty verdict constitutes a finding of guilty of the least degree of the offense charged.”R.C. 2945.75(A)(2) . In this case, therefore, Pelfrey can be convicted only of a misdemeanor offense, which is the least degree underR.C. 2913.42(B) of the offense of tampering with records.Because the language of
R.C. 2945.75(A)(2) is clear, this court will not excuse the failure to comply with the statute or uphold Pelfrey‘s conviction based on additional circumstances such as those present in this case. The express requirement of the statute cannot be fulfilled by demonstrating additional circumstances, such as that 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, or by showing that the defendant failed to raise the issue of the inadequacy of the verdict form. We hold that pursuant to the clear language of
R.C. 2945.75 , 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.
{¶ 37} We next decided State v. Eafford, 132 Ohio St. 3d 159, 2012-Ohio-2224, in which we considered whether a verdict form complied with
{¶ 38} A year after this court decided Eafford, we reiterated our holding in Pelfrey in our decision of State v. McDonald, 137 Ohio St. 3d 517, 2013-Ohio-5042:
In Pelfrey, this court addressed the specificity that
R.C. 2945.75 requires in verdict forms in cases in which the degree of an offense becomes more serious with the presence of additional elements. The court held:“[P]ursuant to the clear language of
R.C. 2945.75 , 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.”Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14.
This court called
R.C. 2945.75 “a clear and complete statute” that “certainly imposes no unreasonable burden on lawyers or trial judges.” Id. at ¶ 12. Its dictates are simple, and the resolution of cases that do not meet its requirements is also straightforward: “The statute provides explicitly what must be done by the courts [whenR.C. 2945.75(A)(1) is not followed]: the ‘guilty verdict constitutes a finding of guilty of the least degree of the offense charged.’R.C. 2945.75(A)(2) .” Id. at ¶ 13.. . . .
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.
McDonald at ¶ 13-14, 17. In McDonald, this Court found that when a verdict form failed to specify that the offense was a third-degree felony and also failed to indicate that the defendant had “operate[d] a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police officer to bring the person‘s motor vehicle to a stop,”
{¶ 39} There is no dispute in this case that the verdict form stated only that Mays was found guilty of “Violating a Protection Order, in violation of
{¶ 40} The State, the Attorney General as amicus curiae in this case, and now the majority, take the position that the jury‘s reference to division (B)(3) in the verdict form finding Mays guilty sufficiently indicated the level of the offense to satisfy
{¶ 41} Even if reference to the statutory division were sufficient, the jury‘s finding does not create a clear path to that conclusion in this case. The jury found Mays guilty “of Count 1, Violating a Protection Order, in violation of
(3) Violating a protection order is a felony of the fifth degree if the offender previously has been convicted of, pleaded guilty to, or been adjudicated a delinquent child for any of the following:
(a) A violation of a protection order issued or consent agreement approved pursuant to section 2151.34, 2903.213, 2903.214, 2919.26, or 3113.31 of the Revised Code;
(b) Two or more violations of section 2903.21, 2903.211, 2903.22, or 2911.211 of the Revised Code, or any combination of those offenses, that involved the same person who is the subject of the protection order or consent agreement;
(c) One or more violations of this section.
B. Plain error
{¶ 42} Despite the fact that the majority‘s decision finds that the verdict form complied with
{¶ 43} Plain error is simply this:
Crim.R. 52(B) affords appellate courts discretion to correct “[p]lain errors or defects affecting substantial rights” notwithstanding an accused‘s failure to meet his obligation to bring those errors to the attention of the trial court. However, the accused bears the burden to demonstrate plain error on the record, State v.
Quarterman, 140 Ohio St. 3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶ 16, and must show “an error, i.e., a deviation from a legal rule” that constitutes “an ‘obvious’ defect in the trial proceedings,” State v. Barnes, 94 Ohio St. 3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 (2002).
Even if the error is obvious, it must have affected substantial rights, and “[w]e have interpreted this aspect of the rule to mean that the trial court‘s error must have affected the outcome of the trial.” Id. We recently clarified in State v. Rogers, 143 Ohio St. 3d 385, 2015-Ohio-2459, 38 N.E.3d 860, that the accused is “required to demonstrate a reasonable probability that the error resulted in prejudice—the same deferential standard for reviewing ineffective assistance of counsel claims.” (Emphasis sic.) Id. at ¶ 22, citing United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004).
(First emphasis added.) State v. Thomas, 152 Ohio St. 3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 32-33.
{¶ 44} The first problem with the view that plain-error analysis applies here is that the statute itself states the consequence for failure to write a verdict form with sufficient specificity: “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 [so as to make an offense one of more serious degree]. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” (Emphasis added.)
{¶ 45} The second and more serious problem with the majority‘s attempt to apply a plain-error analysis in Mays‘s case is that he did not have the obligation to raise the verdict-form issue. The statute clearly provides that a failure of a verdict form to comply with
{¶ 46} Counsel for an accused who is charged with a multi-level offense and who is presented with a verdict form that does not set forth the required language of
{¶ 47} The majority‘s decision is unsound in another way—its review of our precedent. It makes much of its belief that the issue whether to apply plain error was not analyzed in Pelfrey or McDonald. However, whether to apply plain error was, in fact, considered in both cases and rejected by the majority in both cases. In Pelfrey, the majority essentially held that plain-error review did not apply:
“The express requirement of the statute cannot be fulfilled by . . . showing that the defendant failed to raise the issue of the inadequacy of the verdict form.”
Pelfrey, 2007-Ohio-256, at ¶ 14. Justice O‘Donnell (the authoring justice of the Eafford majority opinion) expressed confusion about this court‘s holding in Pelfrey in his dissenting opinion, stating that he “c[ould ]not understand” why the error was not deemed waived when Pelfrey “did not raise it in the trial court at a time that the court could have prepared a different verdict form,” Pelfrey at ¶ 25 (O‘Donnell, J., dissenting), so as to ensure that Pelfrey would be convicted of a felony rather than a misdemeanor, id. at ¶ 26-34 (O‘Donnell, J., dissenting). The answer to Justice O‘Donnell‘s query is that the issue was not forfeited, because it is not the defendant‘s obligation to object to a scantly drafted verdict form that by law resulted in his being convicted of a lesser—rather than greater—offense. As the majority in Pelfrey held, the statute itself specifies that failure to include the language on the jury form results in “‘a guilty verdict constitut[ing] a finding of guilty of the least degree of the offense charged,‘” id. at ¶ 12, quoting
{¶ 48} In McDonald, although plain error was not explicitly analyzed in the written decision, the issue was raised by Justice O‘Donnell during oral argument. Counsel for McDonald explained that since a verdict form‘s failure to comply with
{¶ 49} Additionally, a plain-error analysis is inappropriate for verdict-form errors when such analysis opens the door to a court usurping the jury‘s fact-finding role. To notice plain error, the court must find that the error affected “substantial rights.” Eafford, 2012-Ohio-2224, at ¶ 11. That has been interpreted to mean that the error must have affected the outcome of the trial. Id. In Eafford, the majority concluded that the alleged error with the jury-verdict form did not affect the outcome of the trial, because “[t]he state intended to prove the accused guilty of possession of cocaine, it did so, and the jury in accordance with its findings rendered a verdict in conformity with the evidence presented by the state that Eafford possessed cocaine.” Id. at ¶ 18. The dissenting opinion in Eafford disagreed and noted the settled law that a court may not usurp the fact-finding of a jury through judicial findings. Eafford at ¶ 20 (Lanzinger, J., dissenting), citing Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 (2004), and State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, abrogated on other grounds by Oregon v. Ice, 555 U.S. 160 (2009); see also McDonald, 2013-Ohio-5042, at ¶ 28 (Lanzinger, J., concurring).
{¶ 50} Here, the majority concluded (in dicta) that any deficiencies in Mays‘s verdict form under
IV. CONCLUSION
{¶ 51} The verdict form in this case did not “state either the degree of the offense of which the offender is found guilty, or that such additional element or elements [we]re present” so as to elevate the offense; therefore, the jury‘s verdict “constitutes a finding of guilty of the least degree of the offense charged,”
Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and Catherine Meehan, for appellant.