THE STATE OF OHIO, APPELLEE, v. MCDONALD, APPELLANT.
No. 2012-1177
Supreme Court of Ohio
Submitted March 13, 2013—Decided November 20, 2013
137 Ohio St.3d 517, 2013-Ohio-5042
{¶ 1} In this case, which involves a felony enhancement for failure to comply with the signal or order of a police officer under
Factual and Procedural Background
{¶ 2} On September 30, 2010, Coal Grove Police Department officer Gleo Runyon observed appellant, Scotty R. McDonald, driving a motor vehicle at a high rate of speed on U.S. Routе 52. It was 3:00 a.m. McDonald was headed west toward Ironton and, by Runyon‘s radar, was traveling at 112 miles per hour. Officer Runyon activated his lights and began to pursue McDonald. McDonald exited Route 52 at Marion Pike—about a mile down the road from where Runyon first saw him—and headed toward Ironton. Runyon testified that during the pursuit, McDonald traveled at a high rate of speed through the town of Ironton, at times in excess of 80 miles per hour, running through stoplights and stop signs. McDonald passed at least one establishment that had people gathered outside. McDonald eventually came to a stop and was arrested and transported to the Ironton Police Department. He was given a breath test that indicated a breath-alcohol level of over twice the legal limit.
{¶ 3} The grand jury indicted McDonald on a single, third-degree-felony count оf failure to comply with an order or signal of a police officer, in violation of
Scotty R. McDonald, on or about September 30, 2010, at Lawrence County, Ohio, did operate a motor vehicle * * * so as to willfully elude or flee a police officer after receiving a visible or audible signal from a police officer to bring his motor vehicle to a stop, and the operation of the motor vehicle caused substantial risk of serious physical harm to persons or property, in violation of Section 2921.331(B)(C)(5)(a)(ii) [“(B)(C)” sic] of the Revised Code.
R.C. 2921.331
{¶ 4}
(A) No person shall fail to comply with аny lawful order or direction of any police officer invested with authority to direct, control, or regulate traffic.
(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 officer to bring the person‘s motor vehicle to a stop.
(C)(1) Whoever violates this section is guilty of failure to comply with an order or signal of a police officer.
(2) A violation of division (A) of this section is a misdemeanor of the first degree.
(3) Except as provided in divisions (C)(4) and (5) of this section, a violation of division (B) of this section is a misdemeanor of the first degree.
* * *
(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 reasonablе doubt:
* * *
(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.
{¶ 5}
Verdict Form and Verdict
{¶ 6} McDonald was tried in the Lawrence County Court of Common Pleas. The jury was presented with two verdict forms, one of which read:
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.
{¶ 7} A second vеrdict form submitted to the jury also referred to the offense of failure to comply with the order or signal of a police officer, but without the element of “substantial risk of serious physical harm to persons or property.”
{¶ 8} The jury returned the first verdict form with a guilty finding. The court, concluding that the jury had convicted McDonald of a felony for violating
Appeal
{¶ 9} McDonald appealed, arguing that pursuant to
(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 offеnse 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.
{¶ 10} McDonald argued that the verdict form the jury signed failed to state that he had “willfully * * * elude[d] or fle[d] a police officer after receiving a visible or audible signal from a police officer to bring [his] motor vehicle to a stop” as set forth in
{¶ 11} The court of appeals affirmed the trial court. The court held:
[I]t is not the element of “willfully” fleeing or eluding that elevates the crime from a first degree misdemeanor to a third degree felony but, rather, the fact that the defendant is causing a substantial risk of physical harm to person/property. Because that language from the statute was included in the jury verdict, we conclude that the verdict complied with
R.C. 2945.75 and [State v.] Pelfrey [112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735].
2012-Ohio-1528, 2012 WL 1142677, ¶ 9.
{¶ 12} The appellate court recognized that its opinion was directly at odds with that of the Third District Court of Appeals in a case with similar facts, State v. Schwable, 3d Dist. Henry No. 7-09-03, 2009-Ohio-6523, 2009 WL 4756435, and certified a conflict to this court. This court agreed that a conflict exists and ordered briefing on the following issue:
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) ?
132 Ohio St.3d 1512, 2012-Ohio-4021, 974 N.E.2d 111.
Law and Analysis
{¶ 13} In Pelfrey, this court addressed the specificity that
[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.
{¶ 14} This court called
{¶ 15} In Pelfrey, the defendant was an employee of an auto-emissions-testing company that had a contract with the state of Ohio. Pelfrey was allegedly involved in a scheme in which, for cash, he would provide fraudulent waivers for vehicles that had actually failed an emissions test. He was charged with tampering with records, in violation of
{¶ 16} However, the verdict form signed by Pelfrey‘s jury failed to set forth either the degree of the offense he was convicted of or that the records involved were government records. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 13. Since the fact that the records tampered with were government records elevated the crime from a misdemeanor under
{¶ 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 sеrious degree, the verdict form itself is the only relevant thing to consider in determining whether the dictates of
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 [a] conviction based on additional circumstances * * *. The express requirement of the statutecannot 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.
{¶ 18} Thus, 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
{¶ 19} To properly convict McDonald of a violation of
{¶ 20} The verdict form stated that the jury found McDonald guilty of “Failure to Comply with Order or Signal of Police Officer And Caused A Substantial Risk of Serious Physical Harm To Persons or Property.” As stated above, “failure to comply with an order or signal of a police officer” is the name of a violation оf either
{¶ 21} A violation of
{¶ 22} The only path to a felony conviction for failure to comply with the order or signal of a police officer is through
{¶ 23} The verdict form in this case does not indicate that the elements of
{¶ 24} If the jury had believed that McDonald had simply failed to comply with the order of Offiсer Runyon but did not see or hear the signal or intentionally flee him, but in failing to comply managed to create a substantial risk of 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
{¶ 25} The jury found that McDonald was guilty of failure to comply with the order or signal of a police officer. Its further finding that McDonald had caused a substantial risk of serious physical harm to persons or property was superfluous without a finding that the risk occurred when McDonald wаs in willful flight from a police officer. Thus, pursuant to
{¶ 26} Accordingly, we reverse the judgment of the court of appeals and remand the cause for the trial court to enter a judgment convicting McDonald of
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LANZINGER, KENNEDY, and O‘NEILL, JJ., concur.
O‘DONNELL, J., dissents and would affirm the judgment of the court of appeals and answer the certified-conflict question in the affirmative.
FRENCH, J., dissents.
LANZINGER, J., concurring.
{¶ 27} It is 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.
{¶ 28} The jury verdict in this case was inartfully worded, finding McDonald guilty of “Failure to Comply with Order or Signal of Police Officer And Caused A Substantial Risk of Serious Physical Harm To Persons or Property.” It is true that the court‘s instructions at trial would have defined the elements of the offense for the jury.
{¶ 29} The majority holds simply that the jury‘s verdict must identify specifically the offense of which the defendant is found guilty: a reference to
FRENCH, J., dissenting.
{¶ 30} The majority erases the jury‘s guilty verdict for one reason: the verdict did not recite each and every element of the offense charged. Because there is
{¶ 31} At the outset, there is no constitutional or statutory right to a guilty verdict reciting every element of an offense. To the contrary, criminal law has long disfavored the practice of supplementing general verdicts with special verdicts, special interrogatories, or special findings. “Juries at the time of the framing could not be forced to produce mere ‘factual findings,’ but were entitled to deliver a general verdict pronouncing the defendant‘s guilt or innocence.” United States v. Gaudin, 515 U.S. 506, 513, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). The practice of requiring more than a general verdict is relatively new and fraught with risks. Special findings can “limit jury independence,” 6 LaFave, Criminal Procedure, Section 24.10(a), at 714 (3d Ed.2007), “invite[] confusion and error,” State v. Lampkin, 116 Ohio App.3d 771, 774, 689 N.E.2d 106 (6th Dist.1996), fn. 1, and pose a “danger of * * * shifting or weakening * * * the government‘s burden of proof,” United States v. Wilson, 629 F.2d 439, 442 (6th Cir.1980). The jury instructions are what define the elements of an offense, see
{¶ 32}
{¶ 33} At issue here is the failure-to-comply statute,
{¶ 35} According to the majority, however, the jury‘s verdict violated
{¶ 36} The majority finds an
J.B. Collier Jr., Lawrence County Prosecuting Attorney, and Brigham M. Anderson, Assistant Prosecuting Attorney, for appellee.
The Owen Law Firm, L.L.C., Benjamin A. Tracy, and Todd A. Long, for appellant.