State of Ohio v. Mario D. Mays
Court of Appeals No. L-21-1228; Trial Court No. CR0202001502
IN THE COURT OF APPEALS OF OHIO, SIXTH APPELLATE DISTRICT, LUCAS COUNTY
Decided: June 2, 2023
2023-Ohio-1908
MAYLE, J.
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio
Appellee
v.
Mario D. Mays
Appellant
Court of Appeals No. L-21-1228
Trial Court No. CR0202001502
DECISION AND JUDGMENT
Decided: June 2, 2023
* * * * *
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lorrie J. Rendle, Assistant Prosecuting Attorney, for appellee.
Joseph C. Patituce, Catherine Meehan, and Madison Karn, for appellant.
* * * * *
MAYLE, J.
{¶ 1} Appellant, Mario Mays, appeals the November 19, 2021 judgment of the
Lucas County Court of Common Pleas sentencing him for a fifth-degree felony
conviction of violating a protection order. For the following reasons, we affirm.
{¶ 2} Mays was charged with one count of violating a protection order in violation
of R.C. 2919.27(A)(1) and (B)(3), a fifth-degree felony, and one count of menacing by
stalking in violation of R.C. 2903.211(A)(1) and (B)(2)(e), a fourth-degree felony.1
{¶ 3} Mays’s case was tried to a jury in October 2021. At trial, the state presented
the testimony of C.B., the victim; Christina Baucom, C.B.’s mother; and officer Jeffrey
Bodeman of the Toledo Police Department (“TPD”). Mays presented the testimony of
Jerri Crisp, the mother of his grandson, and Camari Mays, his son, and testified in his
own behalf. The following facts were elicited at trial.
A. The state’s case
{¶ 4} C.B. is Mays’s ex-wife. She described their relationship as “back and
forth,” and said that she moved to get away from him “about once a year” while they
were married. She testified that her relationship with Mays was “physical” beginning in
late 2004 or early 2005, shortly after their second child was born. In addition to “[t]he
name calling and the belittling * * *[,]” C.B. said that Mays’s abuse of her included
“choking,” “doing things” to her in areas that were not visible to most people, “bruises,”
“twisting [her] arms,” “spitting on [her],” and “pushing [her] downstairs [sic].”
{¶ 5} C.B. said that she “filed police reports quite frequently” to report Mays’s
abuse, but she would “beg them not to notify him, because if he found out [C.B.] was
the reports to “document the incidents * * *.”
{¶ 6} C.B. obtained protection orders against Mays in 2007, 2011, and 2017. The
2017 protection order was in effect until June 2022. In September 2017, Mays was
convicted in the Toledo Municipal court of a misdemeanor charge of violating the 2017
protection order. Despite the protection orders and conviction, Mays continued to have
contact with C.B.
{¶ 7} The indictment alleged that Mays recklessly violated a protection order from
November 30, 2019, to February 7, 2020, and C.B. tеstified to several incidents that
happened during that timeframe. The first incident happened on November 30, 2019.
That day, C.B. and Mays’s son, Camari, and his girlfriend, Crisp, were throwing a
birthday party for their son (C.B. and Mays’s grandson) at Chuck E. Cheese. C.B. was
invited to the party and was told that Mays had also been invited, but he decided not to
attend because C.B. was going to be there. However, C.B. said that Mays came to the
party and stayed the whole time (approximately two hours). C.B. “didn’t want to create a
fuss in front of the children about him being there, * * *” so she “let it go.” At first,
Mays was “nice” and “not aggressive” toward C.B. But after 30 to 45 minutes, Mays
saw that C.B. was wearing a ring, grabbed her hand, and asked her if she was married.
Although C.B. told Mays that she was not married and it was “just a ring[,]” she said that
he “was upset from that point forward.”
party. She recalled that she and C.B. were sitting at a table across from Mays when “he
grabbed [C.B.’s] hand because she had a ring on her finger, and he said, so you married?”
After grabbing C.B.’s hand, Mays got up from the table and walked around. Baucom
remembered Mays coming to the restaurant after she and C.B. were there and leaving
before them. She believed that Mays was at the party for a couple of hours and left right
before the end of the party. Baucom did not know at the time of the party that C.B. had a
protection order against Mays.
{¶ 9} The state introduced four photographs that C.B. took during the party. C.B.
took the pictures because Mays “had started to escalate a little bit before the party * *
*[,]” and “[o]nce he saw the ring on [her] finger [she] knew that it would only get worse
* * *.” In two of the pictures, Mays was standing in the restaurant. She said that he was
ten feet away from her in one picture and “[s]everal steps” away from her in the other. In
the other two pictures, Mays was sitting at a table with Crisp and her son. When the
prosecutor asked how far away Mays was in these photos, C.B. said, “Across the table.”
{¶ 10} The second incident that C.B. testified about happened in December 2019.
She said that Mays attended their son’s Christmas program that she was also at.
According to C.B., Mays sat across the сhurch from her and there were no problems
between them that day. That month and the next, Mays also called and texted C.B.,
despite the protection order prohibiting him from contacting her.
made her report, she told the officers that Mays had a court-ordered visitation schedule
with the children in the parties’ divorce decree, but that she had not been following the
order. Instead, she did whatever Mays told her to do—for example, dropping the
children off at his house instead of exchanging them at a police station, letting him pick
the children up from school, and allowing the children to stay with Mays overnight—
because she “felt that was the safest for * * *” her and it “ke[pt] the arguments down, the
threats down.” C.B. feared for her life and was afraid that Mays would “yell at the
children, blame them * * *” if she did not give into his demands. The officers told her
that she “needed to stop immediately” and “needed to follow the Judge’s orders.” C.B.
also showed the officers the phone calls and texts from Mays. On cross-examination,
C.B. admitted that she told the officers that Mays was not making threats toward her.
{¶ 12} The final incident that C.B. testified to happened a couple of weeks after
C.B. filed her police report. This time, Mays and C.B. had a dispute about the children
going to Mays’s house for the weekend. The parties’ divorce decree did not give Mays
any overnight visitation with the children. But, based on a phone call from someone
purporting to be Mays’s lawyer, C.B. took the children to the exchange location at a
police station. C.B. spoke with Bodeman, who was the officer on duty that day.
Bodeman testified that he read the divorce decree, and it did not permit Mays to have
overnight visitation with the children.
to his lawyer on the phone. Bodeman refused because the police had to “abide in [sic]
what is in the court paperwork, * * *” and, based on the decree, the children were not
allowed to stay the night with Mays. Bodeman said that Mays responded by “getting
upset, started screaming, cussing, causing a disturbance in the lobby * * *.” Bodeman
called in other officers to escort Mays out, but Mays left before the officers arrived. On
cross-examination, Bodeman said that it is not unusual for fathers dealing with custody
issues to be upset.
{¶ 14} Later that night, C.B. said, one of Mays’s family members called her. She
recalled that he “told me that I should have listened. I was going to be in big trouble
come Monday. I was going to have charges filed against me. I should have listened to
the attorney. She was going to get me. And I need to bring the kids on Saturday or else I
was going to have consequences that Monday.” After this phone call, C.B. relented and
took the children to the family member’s house so that they could stay with Mays that
weekend.
{¶ 15} Following Bodeman’s testimony, the state rested.
B. Mays’s case
{¶ 16} After the trial court denied Mays’s Crim.R. 29 motion to dismiss, Mays
presented the testimony of his witness.
testified that they are in a relationship and have two children together. The couple live in
a townhouse that C.B. rents for them, although C.B. does not live there.
{¶ 18} Regarding the incident at Chuck E. Cheese, Crisp said that she invited
Mays to the birthday party because he and Crisp’s child have “a special bond.” She saw
Mays come into the restaurant toward the beginning of the party, and said that he went
directly to his grandchild (Camari and Crisp’s child). Mays stayed with his grandchild
and his children. Crisp thought that Mays stayed at the party for 30 to 40 minutes. She
said that he “wasn’t around [C.B.]” and that Mays and C.B. “didn’t have interaction * *
*” at the party. She also noted that she “kind of think the situation weird because [C.B.]
always wants to associate with [Mays].” Crisp testified that she has good relationships
with both Mays and C.B.
{¶ 19} On cross, Crisp admitted that she might not have known if there were
issues between two of the adults at her child’s first birthday party, and that she had been
talking to Mays outside of the courtroom. However, she also testified that C.B. had
called her and Camari the night before they testified “saying that she don’t think that we
should testify against her because she does everything for us.”
{¶ 20} Camari largely corroborated Crisp’s testimony. He said that he and Crisp
had invited Mays to their child’s birthday party. Mаys came at the beginning of the
party, around the same time that Camari arrived. When Camari got into the restaurant, he
went to get some tokens, and then he, Crisp, their child, and Mays went to play games.
was at the party, he never saw C.B. and Mays together or heard Mays talk to C.B. He
thought that Mays was only present for around 30 minutes of the 60-minute party.
{¶ 21} On cross, Camari said that they “really never even sat at the [group’s] table
most of the time.” He claimed that he did not know where his mother was when
everyone sang happy birthday to the child, but also admitted that “when we did sing
happy birthday my dad was on the whole other side * * *” of the table.
{¶ 22} Mays was the final witness of the trial. The way he recalled the birthday
party at Chuck E. Cheese, he arrived around the same time as Camari and some other
guests. He said that he immediately went to play games with his son, daughter, and
nephews—which he did without taking off his coat or going to the table—and they
played for “a long time * * *.” He cоuld not recall exactly how long he stayed at the
party, but thought that it was in the range of 20 to 45 minutes. He claimed that the first
time he saw C.B. at the party was “[w]hen [he] had [his] coat on and [they] actually
caught eye to eye contact[, so he] knew it was time to go.” He left “probably not even
ten minutes” after making eye contact with C.B. He did not know who was around him
when the photographs that the state introduced were taken because he did not know who
took the pictures or exactly when they were taken.
{¶ 23} Mays’s attorney also asked him about some text messages between him and
C.B. Mays claimed that his texts to C.B. were always in response to questions she asked
him. He said that texting about the children was “the way [C.B.] would deal with [him],”
initiates it * * *.”
{¶ 24} Regarding the overnight visit incident, Mays’s testimony was a bit
convoluted, but it seemed like he blamed his family-law attorney for the situation. He
said that his attorney “was very upset with” him because he “would not do visitation * *
*” if he had to pick up the children at the police statiоn. He “didn’t want [his] kids to
have that in they head that their dad had to pick them up from the police station.” He said
that his attorney “felt as though that [he] had to * * *” do visitation exchanges at the
police station, which is apparently why Mays went to the station that day. On cross, he
said that his attorney “forced [him] to exercise [his] parenting rights * * *” even though
he did not feel comfortable exchanging the kids at the police station
{¶ 25} On cross-examination, Mays identified himself in the photographs that
C.B. took during the birthday party at Chuck E. Cheese, but he said that he did not know
who took the pictures and would not agree with the prosecutor that the person who took
them “would have been nearby[.]”
{¶ 26} Mays confirmed that the divorce decree did not permit him to have
overnight visits with the children and that exchanges were supposed to happen at the
police station. He also claimed that he went to their son’s Christmas program because
their son was with him that day, so he had to take their son to the program.
{¶ 27} After Mays testified, he rested his case. The jury convicted Mays of
violating a protection order and acquitted him of menacing by stalking.
{¶ 28} Following Mays’s conviction, the trial court sentenced him, based on a
fifth-degree-felony conviction, to 90 days in jail and three years of community control,
which included the condition that Mays have no contact, directly or indirectly, with C.B.
{¶ 29} Mays now appeals, raising three assignments of error:
ASSIGNMENT OF ERROR 1: APPELLANT’S CONVICTION
WAS AGINST [sic] THE MANIFEEST [sic] WEIGHT OF THE
EVIDENCE.
ASSIGNMENT OF ERROR 2: TRIAL COUNSEL’S
PERFORMANCE WAS SO INEFFECTIVE THAT IT AFFECTED THE
OUTCOME OF THE TRIAL AND VIOLATED APPELLANT’S
CONSTITUTIONAL RIGHTS.
ASSIGNMENT OF ERROR 3: THE VERDICT FORM SIGNED
BY THE JURY WAS INSUFFICIENT TO CONVCIT [sic] APPELLANT
OF A FELONY OF THE FIFTH DEGREE[.]
II. Law and Analysis
A. Mays’s conviction is not against the manifest weight of the evidence.
{¶ 30} In his first assignment of error, Mays argues that his conviction is against
the manifest weight of the evidence because (1) the witnesses presented differing
accounts of the events at Chuck E. Cheese; (2) Crisp, Camari, and Mays each testified
that Mays did not have any interaction with C.B.; (3) the fact that C.B. and her mother
(4) Mays left the party when he realized that C.B. was there, which is not a violation of
the protection order. The state responds that Mays disregarded a substantial risk that
C.B. would be at the party; Camari testified that Mays was across the table from C.B. at
the party, which was consistent with the state’s evidence; and the jury did not clearly lose
its way by believing the state’s witnesses over Mays’s witnesses.
{¶ 31} When we review a claim that a verdict is against the manifest weight of the
evidence, we weigh the evidence and all reasonable inferences, consider the credibility of
the witnesses, and determine whether the jury clearly lost its way in resolving evidentiary
conflicts so as to create such a manifest miscarriage of justice that the conviction must be
reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380, 387, 678N.E.2d 541 (1997). We do not view the evidence in a light most favorable to the
prosecution. “Instead, we sit as a ‘thirteenth juror’ and scrutinize ‘the factfinder’s
resolution of the conflicting testimony.’” State v. Robinson, 6th Dist. Lucas No. L-10-1369, 2012-Ohio-6068, ¶ 15, citing Thompkins at 387. Reversal on manifest weight
grounds is reserved for “the exceptional case in which the evidence weighs heavily
against the conviction.” Thompkins at 387, quoting State v. Martin, 20 Ohio App.3d 172,175, 485 N.E.2d 717 (1st Dist.1983).
{¶ 32} Although we consider the credibility of witnesses under a manifest-weight
standard, we must, nonetheless, extend special deference to the jury’s credibility
determinations, given that it is the jury that has the benefit of seeing the witnesses testify,
discerning qualities such as hesitancy, equivocation, and candor. State v. Fell, 6th Dist.Lucas No. L-10-1162, 2012-Ohio-616, ¶ 14. The jury, as the finder of fact and the sole
judge of the weight of the evidence and the credibility of the witnesses, may believe or
disbelieve all, part, or none of a witness’s testimony. State v. Caudill, 6th Dist. WoodNo. WD-07-009, 2008-Ohio-1557, ¶ 62, citing State v. Antill, 176 Ohio St. 61, 67, 197N.E.2d 548 (1964).
{¶ 33} To prove that Mays violated
show that Mays recklessly violated the terms of a protection order issued under
3113.31
protection order, as applicable here, it was also required to show that Mays had
previously been convicted of or pleaded guilty to a “violation of a protection order issued
* * *” under
2919.27(B)(3)(a)
indifference to the consequences, the person disregards a substantial and unjustifiable risk
* * *” that (1) their conduct is likely to cause a certain result or be of a certain nature, or
(2) certain circumstances are likely to exist.
{¶ 34} As relevant here, the protection order against Mays prohibited him from (1)
being “within 500 feet [of] wherever [C.B.] may be found, or any place [Mays] knows or
should know [C.B. is] likely to be, even with [C.B.’s] permission”; and (2)
“INITIAT[ing] OR HAV[ing] ANY CONTACT with * * *” C.B. through any type of
* * * even with the permission of [C.B.].” (Emphasis sic.) The order accounts for
accidental contact between the parties by ordering Mays to “depart immediately” if he
comes into contact with C.B. “in any public or private place * * *.” (Emphasis sic.)
{¶ 35} After carefully reviewing the evidence and the credibility of the witnesses
and weighing the testimony, we are not convinced that this is an exceptional case in
which the evidence weighs heavily against a conviction. Mays’s primary complaint
under his manifest-weight argument is that the jury chose to believe C.B.’s and Baucom’s
testimony over Mays’s, Camari’s, and Crisp’s. But a conviction is not against the
manifest weight of the evidence simply because the jury chose to believe the
prosecution’s witnesses. State v. Dean, 2018-Ohio-1740, 112 N.E.3d 32, ¶ 44 (6th Dist.).
{¶ 36} Further, we cannot say that the jury lost its way or created a manifest
miscarriage of justice by believing the state’s witnesses about the events at the birthday
party, despite Mays’s clаim that C.B.’s testimony was “suspect” because she did not
report Mays to the police until “she had a dispute with [Mays] about their children.”
First, we note that the part of the trial transcript that Mays cites to support this theory
does not indicate that Mays and C.B. had any type of “dispute” before C.B. reported the
birthday party incident. In fact, although Mays testified that C.B. apparently did not want
one of the children to go on a trip that would require him to miss a week of school, he
specifically said that he and C.B. “didn’t disagree.” And the dispute about the children
birthday party.
{¶ 37} Second, C.B.’s and Baucom’s testimony was not the only evidence against
Mays, and even without their testimony, the weight of the evidence supports Mays’s
conviction. Based on Crisp’s and Camari’s testimony about their relationship with
C.B.—i.e., that Crisp and C.B. are “real close” and that C.B. rents the townhouse they
live in—it is reasonable to infer that C.B. would be invited to her grandchild’s first
birthday party. Crisp’s tеstimony that she “begged” Mays to come to the party suggests
that Mays knew (or, at the very least, suspected) that he could not be at Chuck E. Cheese
during the party because C.B. was going to be there. Camari admitted that Mays was at
the table when the party guests sang happy birthday, and, although Camari claimed that
he did not know where C.B. was at that time, it is reasonable to infer that C.B.—the
birthday child’s grandmother—was among the guests who were singing. And Mays
himself said that he remained at the restaurant for as long as ten minutes after he realized
that C.B. was there. See Lyndhurst v. Smith, 8th Dist. Cuyahoga No. 101134, 2015-Ohio-303, ¶ 50-52 (defendant did not “depart immediately” when he remained where the
protected person was “after about five minutes * * *”). The photographs that C.B. took
at the party—showing Mays on the opposite side of a table that is much narrower than
500 feet—only bolster the jury’s finding that Mays recklessly violated the protection
order.
protection order several times beyond the birthday party. There was evidencе that both
parties were also present at their child’s school event in December 2019, and Mays
admitted to texting C.B. numerous times during the period alleged in the indictment.
Each instance of contact violated the express terms of the 2017 protection order. Mays’s
claims that he was at the event because C.B. made sure that he had the child that day and
that he only texted C.B. in response to her messages are not defenses under
See State v. Simms, 10th Dist. Franklin Nos. 05AP-806 and 05AP-807, 2006-Ohio-2960,¶ 28 (Appellant’s conviction under
the evidence, despite his claim that he was responding to contact from the victim, because
“the protection order does not contain any exception to the order for contact initiated by
the victim. The protection order prohibits contact, period. Such circumstances may well
mitigate the offense; they do not negate the offense.”).
{¶ 39} Based on this evidence, we find that Mays’s conviction is supported by the
weight of the evidence, and his first assignment of error is not well-taken.
B. Mays did not show that he was prejudiced by trial counsel’s performance.
{¶ 40} In his second assignment of error, Mays argues that his trial counsel was
ineffective because counsel failed to object when the state cross-examined Mays about a
prior misdemeanor menacing conviction in violation of
to the existence of Mays’s prior conviction for violating a protection order. The state
responds that (1) it introduced evidence of the menacing conviction as an element of one
not violate
to the violating-a-protection-order conviction because the jury would have learned of the
conviction regardless of a stipulation and the prosecutor was careful to ask minimal
questions about the prior conviction.
{¶ 41} To prevail on a claim of ineffective assistance of counsel, the appellant
must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). To establish ineffective assistance of counsel, the appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for
counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204. “‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’” State v. Sanders, 94Ohio St.3d 150, 151, 761 N.E.2d 18 (2002), quoting Strickland at 694.
{¶ 42} Properly licensed Ohio lawyers are presumed to be competent, State v.Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, and there are
“countless” ways for an attorney to provide effective assistance in a case, so “‘[j]udicial
scrutiny of counsel’s performance must be highly deferential.’” State v. Bradley, 42 OhioSt.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689. Counsel is “strongly
presumption that, under the circumstances, the challenged action ‘might be considered
sound trial strategy.’” State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985),
quoting Strickland at 694-695. Generally, trial strategy and tactical decisions—even
debatable ones—cannot form the basis of a claim of ineffective assistance of counsel.
State v. Grissom, 6th Dist. Erie No. E-08-008, 2009-Ohio-2603, ¶ 22.
{¶ 43} In this case, Mays cannot show that counsel’s performance prejudiced him.
First, assuming that counsel’s failure to object to the prior menacing conviction fell
below an objective standard of reasonable representation, Mays has not shown that there
was a reasonable probability that the outcome of his trial would have been different
without the admission of that information. Although Mays paints this issue as something
that “knee-capped his defense” and “sandbagged [his] credibility[,]” Mays was acquitted
of the menacing charge, and, as discussed above, the record contains plenty of other
evidence to support his violating-a-protection-order conviction.
{¶ 44} Second, whether to enter a stipulation is generally a matter of strategy,
which is outside of the scope of ineffective assistance. State v. McLaughlin, 12th Dist.Clinton No. CA2019-02-002, 2020-Ohio-969, ¶ 55; State v. Hammen, 5th Dist. Stark No.2012CA00009, 2012-Ohio-3628, ¶ 16. And, importantly, Mays did not show that the
outcome of the trial would have been different if counsel chose to stipulate.
{¶ 45} The fact of Mays’s prior violating-a-protection-order conviction was an
essential element of fifth-degree felony violating a protection order that the state was
offense, the conviction is an essential element of the offense that the state is required to
prove beyond a reasonable doubt). Thus, even if trial counsel had stipulated to the
conviction, the information would have been presented to the jury, albeit in a slightly
different form. McLaughlin at ¶ 56, citing State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 153 (“A stipulation would only have relieved the state of its
burden of proving the prior conviction element * * *. But because the prior conviction
remains an element of the * * * charge, the jury still would have learned that appellant
had prior * * * convictions even if trial counsel had stipulated to these prior
convictions.”); State v. Wood, 2d Dist. Clark No. 2016-CA-69, 2018-Ohio-875, ¶ 51
(Trial counsel’s failure to stipulate to a prior conviction was not ineffective assistance
because “[a] stipulation would have presented the information to the jury in a different
way, but the jury would nonetheless have learned of the prior convictions.”). Because the
information that the jury received would not have changed, there is no reasonable
probability that the outcome would have been different with a stipulation.
{¶ 46} Moreover, Mays inflates the role that еvidence of the prior conviction
played at trial. The record does not show a “continuous presentation of a prejudicial prior
conviction * * *” as Mays claims. Instead, the record shows that the state asked C.B. to
identify the record of Mays’s prior conviction, but did not ask Mays (or any other
prior conviction was in this exchange between the prosecutor and C.B.:
[Prosecutor:] I will show you what is marked State’s Exhibit
Number 1. Take a look at that and tell the jury what it is.
[C.B.:] I believe it is when he violated leaving Family Court.
Wait—possibly.
[Prosecutor:] Did you have to go to court after this last violation?
[C.B.:] Yes.
[Prosecutor:] Okay, and was he convicted of violating a protection
order in Toledo Municipal Court here in Lucas County, Ohio?
[C.B.:] Yes.
Although both sides mentioned the prior conviction in their closing arguments, neither
divulged any details beyond those C.B. provided in her testimony. There were no other
mentions of the conviction.
{¶ 47} The information that the jury heard about Mays’s conviction was no more
than it would have heard if trial counsel had stipulated to the conviction—i.e., someone
would have told the jury that Mays’s prior conviction existed, and both sides likely wоuld
have mentioned it in the same ways in closing. Thus, we cannot say that the outcome of
conviction. Accordingly, Mays’s second assignment of error is not well-taken.
C. Mays was properly convicted of a fifth-degree felony.
{¶ 48} In his final assignment of error, Mays argues that the verdict form was
insufficient to convict him of a fifth-degree felony because it was “utterly devoid of any
reference to the level of the offense or any aggravating factors that determine or raise the
level of the offense.” The state responds that the inclusion of the Revised Code section
elevating the conviction to a fifth-degree felony is sufficient for Mays’s felony conviction
to stand.
{¶ 49} Under
raises the degree of the offense, “[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.” If the verdict does not include this information, the verdict “constitutes a
finding of guilty of the least degree of the offense charged.” Id.
{¶ 50}
offense because an additional, aggravating element is present. State v. Pelfrey, 112 OhioSt.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 14; State v. McDonald, 137 Ohio St.3d517, 2013-Ohio-5042, 1 N.E.3d 374, ¶ 17-18.
statute establishes separate offenses in different subsections (as opposed to establishing a
more severe version of a basic offense when additional facts exist); in that case, the
identity of the offense—as opposed to an additional element of the offense—raises the
{¶ 51} Here, Mays was convicted of violating
{¶ 52} Under
{¶ 53} Because the sufficiency of a verdict form under
{¶ 55} In State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853, ¶ 24, the
Third District concluded that, under Pelfrey,
{¶ 56} The Third District concluded that this verdict form was insufficient
because, in Pelfrey, the Ohio Supreme Court held that “‘[t]he express requirement of
[
{¶ 57} The Third District’s interpretation, however, is questionable in light of the
Ohio Supreme Court’s full reasoning and description of “additional circumstances” in
Pelfrey. There, the Supreme Court determined that a verdict form could not comply with
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 inadequaсy of the verdict form.
Pelfrey at ¶ 14. In other words, impermissible “additional circumstances” under Pelfrey refers to any circumstance that is “additional” because it is outside the verdict form itself—e.g., the language of the indictment, jury instructions, trial testimony, or evidence in the record. The Pelfrey court did not explicitly or implicitly hold that references to
{¶ 58} Indeed, a few months after the Third District decided Gregory, the Ohio
Supreme Court decided McDonald, which contains a concurring opinion that explicitly
states that statutory sections can sufficiently state the degree of the offense under
{¶ 59} In McDonald, the defendant was charged with willfully failing to comply
with the order or signal of a police officer under
{¶ 60} Justice Lanzinger wrote a concurring opinion in which she stated that it
was “misleading” for the dissent to suggest that “there is now a requirement for a verdict
form to recite each and every element of the offense charged.” Id. at ¶ 27 (Lanzinger, J.,
concurring). Justice Lanzinger clarified: “[t]he majority holds simply that the jury’s
verdiсt must identify specifically the offense of which the defendant is found guilty: a
reference to
{¶ 61} Indeed, several appellate districts appear to take a similar view that the
inclusion of statutory references in a verdict form can satisfy
{¶ 62} We agree, and hold that a verdict form that includes statutory references
can comply with
{¶ 63} Here, the relevant part of the verdict form says that the jury found Mays
“guilty of Count 1, Violating a Protection Order, in violation of
{¶ 64} Although this is true, that level of specificity is not required to satisfy
{¶ 65} According to the dissent, the verdict form does not comply with
{¶ 67} Again, the only issue raised in this case is whether the verdict form
complied with
{¶ 69} Mays’s third assignment of error is not well-taken.
{¶ 70} Furthermore, we find that our decision is in conflict with the decision in
Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853. In Gregory, the Third District
determined, based on Pelfrey and two earlier Third District cases, that the requirements
of
{¶ 71} Under Section 3(B)(4), Article IV of the Ohio Constitution, “[w]henever the judges of a court of appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other court of appeals of the state, the judges shall certify the record of the case to the supreme court for review and final determination.” The Ohio Supreme Court set forth three requirements which must be met in order to certify a case:
Whitelock v. Gilbane Bldg. Co., 66 Ohio St.3d 594, 596, 613 N.E.2d 1032 (1993).
{¶ 72} Because we find that our decision in this appeal is in conflict with Gregory,
we certify a conflict to the Supreme Court of Ohio on the following issue: Can the
requirement in
III. Conclusion
{¶ 73} For the foregoing reasons, the November 19, 2021 judgment of the Lucas County Court of Common Pleas is affirmed. Mays is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
CONCUR. ____________________________
JUDGE
Gene A. Zmuda, J. ____________________________
CONCURS, IN PART, JUDGE
DISSENTS, IN PART, AND
WRITES SEPARATELY.
ZMUDA, J.
{¶ 74} Although I concur with the majority regarding resolution of the first and second assignments of error, I would find Mays’ third assignment of error well-taken, I respectfully concur, in part, and dissent, in part.
{¶ 75} In his third assignment of error, Mays argues that the verdict form was insufficient to convict him оf a felony of the fifth degree. The jury form does not specify the level of offense as a felony of the fifth degree, and it references an incomplete
{¶ 76} The state argues that compliance with
{¶ 77} In McDonald, the Court cited to State v. Pelfrey, 112 Ohio St.3d 422, 2007-
Ohio-256, 860 N.E.2d 735 as authority, noting “This court called
{¶ 78} In McDonald, the defendant was charged with violating
{¶ 79} In a dissent, Justice French determined
{¶ 80} In State v. Gibert, 2017-Ohio-7676, 97 N.E.3d 1004, the First District Court of Appeals applied the law in Pelfrey and McDonald, finding the Ohio Supreme Court in McDonald “made clear” the applicable law, as follows:
[I]n 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, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, at ¶ 17; [State v.] Johnson, 2016- Ohio-781, 60 N.E.3d 661, ¶ 13 [(1st Dist.)]. We find McDonald and Johnson to be controlling in this case. See State v. Robinson, 1st Dist. Hamilton No. C-150346, 2016-Ohio-3330, * * * ¶ 29. Therefore, in determining whether the verdict form in this case complied with R.C. 2945.75, we consider only the verdict form[.] See McDonald at ¶ 18.
Gilbert at ¶ 21. Applying McDonald, the First District found “[s]trict compliance with
the dictates of
{¶ 81} Based on the facts of this case, and applying the strict comрliance standard,
it is clear the verdict form, in this case, fails to strictly comply with the dictates of
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:
{¶ 82} While the indictment includes language of all three subsections under
{¶ 83} Essentially, the majority argues that the enhancing statute, minus the
specific element, denotes the degree of the offense because all of the potential enhancing
subsections – if found – would lead to a finding for a fifth-degree felony offense. In
other words, because
{¶ 84} In McDonald, the verdict “was inartfully worded,” and without any statutory reference, provided:
We, the jury, find the Defendant, Scotty R. McDonald (Guilty or Not Guilty) of Count One: Failure to Comply with Order or Signal of Police Officer and Caused a Substantial Risk of Serious Physical Harm to Persons or Property.” McDonald at ¶ 6; 28, (Lanzinger, J., concurring).
The majority in McDonald determined that “‘failurе to comply with an order or signal of
a police officer’” is the name of a violation of either
{¶ 85} Because the “only path to a felony conviction” is through
(B) No person shall operate a motor vehicle so as willfully to elude or flee a police officer after receiving a visible or audible signal from a police оfficer to bring the person‘s motor vehicle to a stop.
(5)(a) A violation of division (B) of this section is a felony of the third degree if the jury or judge as trier of fact finds any of the following by proof beyond a reasonable doubt:
(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.
(Emphasis added)
{¶ 87} This case differs from the example cited in McDonald, in that the verdict
form – here – omits the actual element deemed acceptable by the concurrence, ending
with the “any of the following” language. As a result, the verdict form does not contain
either a statement of the level of offense or statutory reference to the elements necessary
for a fifth-degree felony conviction.
{¶ 88} The majority reasons that the verdict form, in this case, contains statutory references that – standing alone – would state the degree of the offense without any additional circumstances. I disagree.
{¶ 89} The statute provides two methods for designating the degree of the offense
in the verdict form. Pursuant to
{¶ 90} As to the elements, the verdict form in this case refers to only the potential
of a fifth-degree felony, dependent on finding “any of the following,” not otherwise listed
within the subsection of
The United States Supreme Court has clearly held that a court may not usurp the fact-finding of a jury through judicial findings. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We have also acknowledged that principle. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470.
McDonald at ¶ 28. (Lanzinger, J., concurring).
{¶ 92} Finally, I believe the majority has misconstrued my reference to Apprendi as addressing a constitutional issue. While I agree with the majority that courts must refrain from addressing constitutional issues thаt have not been raised, my dissent does not rest upon a constitutional issue. Rather, the statute in this case is consistent with Apprendi in requiring a jury to engage in fact-finding regarding the elements of an
{¶ 93} Based on the foregoing, I respectfully dissent, in part, as to Mays’ third assignment of error, and would reverse and remand for entry of conviction of a first-degree misdemeanor, consistent with Pelfrey and McDonald.
Notes
hearing the evidence at trial, the trial court granted the state’s motion to amend the
indictment to reflect that Mays violated R.C. 2919.27(A)(1).
he points to clearly shows that the questions were about the prior menacing conviction,
despite the prosecutor referring to “State’s Exhibit Number 1” (the record of the
violating-a-protection-order conviction).