STATE OF OHIO, Plaintiff-Appellee, v. MARY SCHENTUR, Defendant-Appellant.
No. 108448
COURT OF APPEALS OF OHIO, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 23, 2020
2020-Ohio-1603
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-628960-A
Appearances:
Michael C. O‘Malley, Cuyahoga County Prosecuting Attorney, and Ronni Ducoff, Assistant Prosecuting Attorney, for appellee.
Patituce & Associates, L.L.C., Joseph C. Patituce, and Megan M. Patituce, for appellant.
LARRY A. JONES, SR., J.:
{1} Defendant-appellant, Mary Schentur (“Schentur“), appeals her conviction for unlawful sexual conduct with a minor. For the reasons that follow, we affirm.
{3} The matter proceeded to a jury trial at which the following pertinent evidence was presented; throughout the proceedings Schentur and the young victim‘s age, and what knowledge Schentur had of the victim‘s age, were at issue.
{4} Schentur was hired as an assistant coach for the Independence High School girls’ basketball team for the 2016-2017 academic school year. “H.D.” was an incoming freshman on the team who was selected to play at the varsity level. H.D. was 15 years old. That fall, Schentur became friends with H.D. and her older sister, who also played on the team. Schentur would give H.D. rides to the games and communicate with her via text and Snapchat. They would also go to the Metroparks and out to get food. They often took “silly” pictures together, but Schentur asked H.D. not to “post” the pictures on social media. The friendship progressed to Schentur spending the night at H.D.‘s house, often in H.D.‘s bed. H.D. would also have parties at her house, where alcohol was consumed and Schentur was present.
{5} After the basketball season ended, the relationship between H.D. and Schentur did not. Schentur began to express “romantic” feelings for H.D.
{6} H.D.‘s friends and family questioned H.D. about her relationship with Schentur and noted that she was forfeiting time with her other friends to spend time with Schentur. One of her friends asked her if she was having a relationship with Schentur, but H.D. denied that anything inappropriate was happening.
{7} The first incident occurred the night of 4th of July 2017, the summer before H.D. turned 16 years old. Schentur was 20 years old at the time. The incident occurred in H.D.‘s bedroom. The second incident happened the same summer at Schentur‘s house. Another incident occurred at the home of Schentur‘s aunt. At trial, H.D. described the sexual conduct, which included digital penetration. H.D. and Schentur talked about keeping their relationship a secret; H.D. testified that they wanted to keep it secret due to the homosexual nature of the relationship.
{8} Schentur did not coach basketball for the 2017-2018 academic year because she was playing college basketball. In late 2017, Schentur told H.D. they were breaking up because she was dating someone else.
{9} H.D. started seeing a counselor about an unrelated family issue. At one of the counseling sessions, H.D. disclosed that she had had a sexual relationship with Schentur. The counselor, who testified at trial, advised H.D. that
{10} According to H.D.‘s father, he asked his daughter what was wrong on their way home from her last counseling session. H.D. told her father about Schentur. The father recalled that H.D. was angry that her counselor was going to report Schentur. His daughter refused to see the counselor again or to see another counselor.
{11} The head basketball coach testified that H.D. was one of two freshman on the varsity basketball team. According to the coach, he had told Schentur when he hired her that he had two girls that “were coming from the middle school” that he felt would “move to varsity” as freshman. The coach further indicated that “it‘s common knowledge you know what grade level your players are at.”
{12} The assistant principal of the high school testified that most, if not all, freshman at Independence High School are 14 or 15 years old. The assistant principal was aware that Schentur was hired as an assistant basketball coach for the 2016-2017 academic year. One of the requirements for hire is that the employee have a “pupil activity permit.”
{13} The state entered into evidence Schentur‘s pupil activity permit, which showed effective dates of July 1, 2015 – June 30, 2018. The assistant principal testified that the Ohio Department of Education has bylaws through the
{14} Detective Jamie Bonnette (“Detective Bonnette“) from the Cuyahoga County Sheriff‘s Department testified that he investigated the case. As part of the investigation, he learned that Schentur‘s birthday was May 17, 1997, making her at least four years older than H.D. at the time of the offenses. He secured a warrant for H.D.‘s phone and analyzed communications between the child and Schentur.
{15} Karri Eckert (“Eckert“), a certified Law Enforcement Automatic Data System (“LEADS“) operator for the Cuyahoga County Sheriff‘s Department, and Barry Solomon (“Solomon“), an investigator for the Ohio Department of Public Safety Bureau of Motor Vehicles, verified documents showing Schentur‘s birthdate. Further facts regarding their testimonies will be discussed under the appropriate assignments of error.
{16} The jury convicted Schentur of all four counts. The court sentenced her to 30 days in jail, one year of home detention, and classified her as a Tier II sex offender. The trial court stayed her jail sentence pending appeal.
I. The trial court abused its discretion by permitting the state to reopen its case to present new evidence and witnesses[,] which resulted in substantial prejudice to the defense.
II. The state failed to present sufficient evidence to prove each and every element of
III. The trial court erred in allowing impermissible hearsay testimony from social worker Roser.
IV. The state committed prosecutorial misconduct by repeatedly questioning regarding convictions in records it attempted to tie to appellant and displaying those records to the jury.
V. The trial court erred in providing faulty instructions to the jury.
VI. The verdict forms signed by the jury were insufficient to convict appellant of felonies of the fourth degree.
First Assignment of Error – Trial Procedure
{17} In the first assignment of error, Schentur contends that the trial court erred when it allowed the state to reopen its case to allow additional witness testimony and exhibits into evidence. Schentur argues that the trial court abused its discretion when it allowed the state to reopen its case so that the state could present evidence regarding a necessary element of the offense; to wit: Schentur‘s date of birth, to establish that Schentur was four or more years older than H.D. at the time of the offenses.
{18} The decision to allow the state to reopen its case for the presentation of further evidence lies within the sound discretion of the trial court, and this court will not reverse that decision absent an abuse of discretion. State v. Roberson, 8th Dist. Cuyahoga No. 88215, 2007-Ohio-1981, ¶ 23, citing Columbus v. Grant, 1 Ohio App.3d 96, 439 N.E.2d 907 (10th Dist.1981).
{19} In Roberson, the defendant was charged with theft of televisions from a Target store. After the defendant had moved for an acquittal pursuant to
This is not a case where the State was permitted to reopen its case after further opportunity to obtain the necessary evidence. Rather, it was a case of mere oversight by the State which had already obtained the necessary evidence through its prior investigation of the incident and preparation for trial. Moreover, there is no claim of surprise or prejudice on the part of defendant due to the nature or content of this additional testimony.
(Citations omitted). Id. at ¶ 29. This court concluded that the trial court “appropriately enabled the trier of fact to hear all available relevant evidence in the interest of justice.” Id. at ¶ 30.
{20} In this case, Schentur was charged with four counts of unlawful sexual conduct with a minor in violation of
(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
{21} In order to establish Schentur‘s age, the state, over defense objection, questioned Detective Bonnette, who testified that Schentur‘s birthday was May 17, 1997. After the state rested its case, the court determined that it had erroneously allowed the state to question the detective about Schentur‘s date of birth. After reversing its previous ruling, the court allowed the state to reopen its case and call two additional witnesses to establish Schentur‘s date of birth.
{22} Schentur claims that the trial court abused its discretion to her prejudice because “the defense strategy had been based on the state‘s failure to present the relevant evidence * * * the state did not believe it had to prove Appellant‘s age.” We find this contention to be without merit. As mentioned, Schentur‘s age was at issue throughout the trial. When age is an essential element of an offense, it must be proved beyond a reasonable doubt. State v. Price, 80 Ohio App.3d 35, 43, 608 N.E.2d 818 (3d Dist.1992). Age may be proved by circumstantial evidence, but the jury‘s observations of the defendant alone are not sufficient. Id. Schentur provides no evidence that the state did not think it had to prove Schentur‘s age, an element of the offense, and sought to reopen its case because the state belatedly remembered it needed to prove her age.
{23} Contrary to Schentur‘s assertions, the record shows that the state first sought to introduce Schentur‘s age through the testimony of William Roser
{24} Similar to Roberson, 8th Dist. Cuyahoga No. 88215, 2007-Ohio-1981, the evidence was in the state‘s possession prior to trial. There was no claim of surprise or prejudice on Schentur‘s part due to the nature or content of the evidence. We find no abuse of discretion in the trial court‘s decision to allow the state to reopen its case. The first assignment of error is overruled.
Second Assignment of Error – Sufficient Evidence to Sustain Convictions
{25} In the second assignment of error, Schentur contends that there was insufficient evidence to sustain her convictions for unlawful sexual conduct with a minor. Specifically, Schentur argues that Eckert and Solomon‘s testimonies and accompanying exhibits were insufficient to establish Schentur‘s age.
{26} Whether a conviction is supported by sufficient evidence is a question of law, which this court reviews de novo. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). “Sufficiency concerns the burden of production and tests whether the prosecution presented adequate evidence for the case to go to the jury.” Id. Our standard of review when addressing the sufficiency
{27} Schentur‘s only contention under this assignment of error is that the state failed to prove the element of her age. As mentioned, the state introduced the testimony of two witnesses, Eckert, a certified LEADS operator for the Cuyahoga County Sheriff‘s Department, and Solomon, an investigator for the Ohio Department of Public Safety Bureau of Motor Vehicles, to establish the defendant‘s age.
{28} Schentur claims that neither Eckert nor Solomon established that the records were Schentur‘s records because the documents were not self-authenticating and there was no testimony as to the accuracy of the record or the database from which the records were pulled. We disagree.
{29} This court has consistently held that a LEADS report is admissible when properly authenticated, pursuant to
{30}
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (a) the activities of the office or agency, or (b) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, unless offered by defendant, unless the sources of information or other circumstances indicate lack of trustworthiness.
{31}
{32} Eckert authenticated the LEADS printout through her testimony. Eckert testified about her employment history, certification, and training on the LEADS system, how the system worked, and what procedures the agency is required to follow. Eckert identified the LEADS printout as a record her office keeps in the normal course of business within the sheriff‘s department. We find it was properly admitted into evidence.
{33} This court has also held that Ohio Bureau of Motor Vehicles records constitute public records under
{34} In McCallum, the defendant‘s driving records consisted of a copy of a driving record and a cover sheet. The cover sheet was signed by the registrar and custodian of files and records for the BMV and marked “Driver Record Certification.” The registrar indicated that “the attached documents are true and accurate copies of the records in [his] custody.” Id. at 14. The records, however, were not notarized and did not contain an official seal. The registrar did not testify at trial; instead the records were introduced through the testimony of a police officer. The appellate court found that the records were not self-authenticating because they lacked a seal, notarization, or affidavit attesting to their authenticity. Id. at 16.
{35} Unlike McCallum, the BMV records in this case contained a seal attesting to the accuracy of the report. Although the seal was a photocopy of the actual seal, the BMV records in this case were introduced by the BMV representative who prepared the records. We find that these records were properly authenticated and admitted into evidence.
{36} Moreover, even if the records of Schentur‘s actual date of birth were inadmissible and Eckert and Solomon‘s testimonies were lacking, there was
{37} In light of the above, we find sufficient evidence that Schentur was “18 years or older” at the time she committed unlawful sexual conduct with a minor.
{38} Eckert and Solomon provided admissible documentation that Schentur‘s birthdate is May 7, 1997, making her 20 years old at the time of the offenses. Schentur makes no other argument with regard to sufficiency of the evidence. We conclude there was sufficient evidence to support her convictions.
{39} The second assignment of error is overruled.
Third Assignment of Error – Social Worker Testimony
{40} In the third assignment of error, Schentur claims that the trial court erred when it allowed into evidence impermissible hearsay testimony from CCDCFS social worker Roser.
{41} “It is well established that, pursuant to
{42} In this case, the trial court stated that it was allowing social worker Roser to testify about his investigation pursuant to the hearsay exception in
{43} Schentur contends that Roser‘s testimony regarding H.D.‘s disclosures was inadmissible hearsay because Roser (1) offered his opinion as to the nature of Schentur‘s relationship with H.D.; (2) provided no medical diagnosis; (3) acted as an agent of the police in obtaining statements; and (4) did not refer H.D. for additional counseling or treatment. Thus, Schentur claims, Roser‘s only involvement was to act as an extension of the police and any statements the social worker made at trial were only for investigative or prosecutorial purposes and, therefore, constituted inadmissible hearsay.
{45} We do not find the fact that Roser did not render a medical diagnosis or refer H.D. for further treatment to be controlling. Roser is not a medical professional; he is a child protection specialist. In addition, the fact that Roser did not refer H.D. to counseling did not alter his initial reason for meeting with H.D. because “[t]he determination regarding whether the alleged perpetrator has access to the child victim necessarily involves a treatment plan insofar as it ensures the child is free of the abuse.” See State v. Fears, 8th Dist. Cuyahoga No. 104868, 2017-Ohio-6978, ¶ 45. Schentur and H.D. spent a considerable amount of time together, including numerous overnights where they slept in the same bed. Thus, part of Roser‘s plan would be to make sure that Schentur, the alleged perpetrator, no longer had access to H.D., the alleged victim.
{47} Roser testified that he had been employed at CCDCFS for 18 years and worked in the “special investigations unit” for nine years. Roser explained that he received ongoing professional training, including training in forensic interviewing. Roser testified that at the conclusion of an investigation the agency makes one of three dispositions:
One is a substantiated finding, meaning the information I gather supports the allegations as true and also meets Ohio Revised Code definitions for out of home care child abuse and/or neglect. It could be an indicated finding, which also is supportive of the allegations as being true, meets that Ohio Revised Code criteria for out of home care abuse or neglect. But an indicated finding is more circumstantial in nature as opposed to substantiated.
I can also unsubstantiate the allegations, meaning the information does not support the allegations as true and does not meet that Ohio Revised Code criteria for out of home care child abuse or neglect. Unsubstantiated doesn‘t necessarily mean nothing happened, but that [it] does not mean [sic] that code criteria.
{48} Social workers are permitted to testify to their disposition in an alleged sexual abuse case. See State v. Smelcer, 89 Ohio App.3d 115, 623 N.E.2d
Roser: * * * the interview I conducted with H.D. and then some corroborating information throughout my interviews with friends, family, and other persons.
State: Okay. Did it have anything to do with the nature of the relationship of the two parties?
Roser: It did. Yes.
State: Okay. Can you describe that more?
Roser: Sure. Any athletic coach would be in a position of power and authority and trust when it comes to the individual that they‘re coaching. And I believe that that relationship was used to forge the relationship that[] subsequently occurred.
State: Anything to do with how much time they spent together? Was that a factor?
Roser: Yeah. Yes. I found that [Schentur] had significant access to [H.D.] during the time both supervised, unsupervised, in group settings, and alone.
State: Did you rely on anything having to do with [Schentur‘s] background in terms of relatability to the victim?
Roser: Yeah. They were in -- they shared the interest of basketball. They were close in age, which can be -- it could have been used to forge that relationship of a friendship bond prior to moving it forward into a sexual romantic relationship.
(Tr. 761-762.)
{49} We find no error in the court‘s admission of this testimony. Roser‘s statement that an athletic coach is in a position of power and can use that position to “forge” a “relationship,” his statement that Schentur had access to H.D., and his statement that Schentur and H.D. had common interests were rationally based on
{50} Although Roser testified about his investigation into the allegations, this is not akin to a situation where a lay witness opined about whether a witness was telling the truth, see State v. Kovac, 150 Ohio App.3d 676, 2002-Ohio-6784, 782 N.E.2d 1185, ¶ 32 (2d Dist.) (lay witnesses are prohibited from testifying as to another witness‘s veracity) or opined whether the crime occurred, see State v. Luce, 6th Dist. Lucas No. L-16-1028, 2017-Ohio-4472, ¶ 38 (trial court erred in allowing social worker to express her opinion that appellant abused child victim). Here, Roser did not testify regarding H.D.‘s veracity and he did not express an opinion whether the crime of unlawful sexual conduct with a minor occurred. Accordingly, Roser‘s testimony was admissible under
{51} In light of the above, the third assignment of error is overruled.
Fourth Assignment of Error – Prosecutorial Misconduct
{52} In the fourth assignment of error, Schentur contends that the state committed prosecutorial misconduct so prejudicial that she was denied her right to a fair trial. Schentur argues that the state repeatedly questioned Eckert about Schentur‘s past convictions and displayed the LEADS report to the jury so that the jury saw inadmissible, inaccurate, and prejudicial material.
{54} In this case, the state questioned Eckert about what the LEADS report would show, and Eckert testified that it would show a person‘s criminal history. Defense counsel objected and the court sustained the objection:
State: And then what is in the body of this first page?
Eckert: This is a if she‘s ever like in an accident or she had a ticket -
Defense Counsel: Objection.
Court: Sustained.
Eckert: - anything against her driving record.
[Court then struck the response from the record.]
* * *
State: And what would you call this page?
Eckert: Her CCH.
State: And what is a CCH.
Eckert: Criminal history.
Defense Counsel: Objection, your Honor.
Court: Sustained.
State: Well, to be fair, is there any history included in this document?
Eckert: Yes.
Court: Sustained. Stop.
(Tr. 888 – 890.)
{55} At this point, the court called the parties to sidebar and defense counsel asked the court to instruct the jury that Schentur did not have a criminal record. The court responded that the state should ask Eckert that question. The state then inquired:
State: Looking at State‘s Exhibit 17 [the LEADS report], is there anywhere on this document that indicates that there are any prior convictions for this particular defendant?
Eckert: Only the recent one –
Defense Counsel: Objection, your Honor.
Court: The objection is sustained. The jury will disregard.
State: I‘m going to ask you to look at Exhibit 17 and to read this portion here. * * * So looking at what I was pointing at, would you change your answer and, in fact, say this is not, in fact, a conviction?1
Eckert: Yes.
State: Thank you. And, in fact, this – what I have shown you has no convictions for the defendant whatsoever?
Eckert: Right.
(Tr. 891-892.)
{¶ 57} The LEADS report was also briefly published to the jury and it showed that Schentur had received a traffic ticket. After learning of this, defense counsel motioned for a mistrial, which the trial court denied. A redacted version of the LEADS report was entered into evidence.
{¶ 58} The Ohio Supreme Court has found that no prosecutorial misconduct existed where improper questions were properly objected to and objections were sustained, and the prosecutor did not “embark on or embrace a pattern of repeated or egregious abuse of examination or cross-examination.” State v. Apanovitch, 33 Ohio St.3d 19, 24, 514 N.E.2d 394 (1987). No such pattern exists here. The state did not elicit testimony from Eckert about Schentur‘s criminal history. Eckert‘s misstatements about Schentur‘s “criminal convictions” were just that — misstatements the witness made that were objected to and stricken from the record. The state, at the request of defense counsel and at the direction of the trial court, had Eckert clarify that Schentur did not have a criminal record. On cross-examination, defense counsel had the witness reiterate that the defendant did not have a criminal record.
{¶ 59} Schentur also contends that the jury improperly saw that she had previously received a traffic ticket when the state published the LEADS report to the jury. It is unknown what the jury saw, if anything, when the state briefly showed it the report and a redacted version of the report was admitted into
{¶ 60} In light of the above, the fourth assignment of error is overruled.
Fifth Assignment of Error – Jury Instructions
{¶ 61} In the fifth assignment of error, Schentur contends that the trial court erred in providing faulty jury instructions. Schentur argues that the court erred in including her date of birth and H.D.‘s date of birth in the jury instructions.
{¶ 62} “Jury instructions are reviewed in their entirety to determine if they contain prejudicial error.” State v. Wiley, 8th Dist. Cuyahoga No. 99576, 2014-Ohio-27, ¶ 35, citing State v. Kimmie, 8th Dist. Cuyahoga No. 99236, 2013-Ohio-4034, ¶ 69. Instructions to a jury “may not be judged in artificial isolation but must be viewed in the context of the overall charge.” State v. Williams, 8th Dist. Cuyahoga No. 94616, 2011-Ohio-925, ¶ 37; State v. Price, 60 Ohio St.2d 136, 398 N.E.2d 772 (1979), paragraph four of the syllabus. Taken as a whole, we find that the trial court‘s instructions effectively advised the jury on the charged offenses.
{¶ 63} As mentioned, the ages of the victim and the defendant were elements of the offenses that the state was required to prove. In State v. Norman, 8th Dist. Cuyahoga No. 104244, 2017-Ohio-92, this court found no plain error when the jury instructions included the dates of birth of the victims where proof was required that the victims were under the age of 13 at the time of the offense. Id. at ¶ 101. The Norman court noted that the jury instructions also indicated that the jury must find the victims were under the age of 13 at the time of the offense.
{¶ 64} Schentur contends that the dates of birth were irrelevant because the state bore the burden of proving her and H.D.‘s dates of birth and her date of birth was improperly admitted into evidence. We disagree. We have already determined that Schentur‘s date of birth was properly entered into evidence. H.D. and her father testified to H.D.‘s date of birth. The trial court instructed the jury it had to find that H.D. was 13 years of age or older but less than 16 years of age and that Schentur was 18 years or older before it could find that Schentur was guilty of the charged offenses. Thus, considering the jury instructions as a whole, we find that no prejudice resulted from the inclusion of the dates of birth in the jury instructions.
{¶ 65} The fifth assignment of error is overruled.
Sixth Assignment of Error – Verdict Forms
{¶ 66} In the sixth assignment of error, Schentur contends that the verdict forms were insufficient to convict her of felony unlawful sexual conduct with a minor. Schentur argues that pursuant to
{¶ 67}
* * *
(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.
{¶ 68}
(A) No person who is eighteen years of age or older shall engage in sexual conduct with another, who is not the spouse of the offender, when the offender knows the other person is thirteen years of age or older but less than sixteen years of age, or the offender is reckless in that regard.
(B) Whoever violates this section is guilty of unlawful sexual conduct with a minor.
(1) Except as otherwise provided in divisions (B)(2), (3), and (4) of this section, unlawful sexual conduct with a minor is a felony of the fourth degree.
(2) Except as otherwise provided in division (B)(4) of this section, if the offender is less than four years older than the other person, unlawful sexual conduct with a minor is a misdemeanor of the first degree.
(3) Except as otherwise provided in division (B)(4) of this section, if the offender is ten or more years older than the other person, unlawful sexual conduct with a minor is a felony of the third degree.
(4) If the offender previously has been convicted of or pleaded guilty to a violation of section 2907.02, 2907.03, or 2907.04 of the Revised Code or a violation of former section 2907.12 of the Revised Code, unlawful sexual conduct with a minor is a felony of the second degree.
{¶ 69}
{¶ 70} The primary goal in construing a statute is to ascertain and give effect to the intent of the legislature. State v. Chappell, 127 Ohio St.3d 376, 2010-Ohio-5991, 939 N.E.2d 1234, ¶ 16, citing State v. Hairston, 101 Ohio St.3d 308, 2004-Ohio-969, 804 N.E.2d 471, ¶ 11. Where the meaning of the statute is clear and definite, it must be applied as written. Chappell at id., citing Bailey v. Republic Engineered Steels, Inc., 91 Ohio St.3d 38, 40, 741 N.E.2d 121 (2001). However, where the words are ambiguous and are subject to varying interpretations, further interpretation is necessary. Id.
{¶ 72} In Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, a case involving the offense of tampering with records, the Ohio Supreme Court held that “[p]ursuant to the clear language of
{¶ 73} The state makes the following argument. The provisions of
{¶ 74} In State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374, the appellant argued that pursuant to
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.
{¶ 75} Thus, the court concluded, because the case involved “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,” the court looks only to the verdict form signed by the jury to determine whether, pursuant to
{¶ 76} Unlike Pelfrey and McDonald, here, Schentur was convicted of a crime that is a fourth-degree felony by default. Her conviction was not “enhanced” or “transformed” — there are no additional elements of
The only path to a felony conviction for failure to comply with the order or signal of a police officer is through
R.C. 2921.331(B) . If only one type of failure to comply can lead to a felony, the particular elements of that type of failure to comply constitute one part ofR.C. 2945.75 ‘s “one or more additional elements [that] make [ ] an offense one of more serious degree.” The first element of a felony charge underR.C. 2921.331 is that the failure to comply involved willful elusion or flight from a police officer. Without that element, there can be no felony.
{¶ 77} In this case, unlawful sexual conduct with a minor is, by default, a felony of the fourth degree. It is only through an additional element to the offense, as stated in
{¶ 78} In contrast to this case, in Pelfrey, the offense of tampering with records was defined in one division of a statute and then an additional element was defined in a subsequent division that raised the degree of the offense where the records belonged to a government entity. In McDonald, the offense of failure to comply with a police officer was defined in one division of a statute and then an additional element was defined in a subsequent division that raised the degree of the offense if there was a substantial risk of serious harm. In both Pelfrey and
{¶ 79} We find State v. Dudley, 10th Dist. Franklin No. 06AP-1272, 2008-Ohio-390, instructive. In Dudley, the defendant was convicted of kidnapping in violation of
{¶ 80} The statute is clear.
{¶ 81} Put another way, H.D. and Schentur‘s ages were essential elements of the case — among other elements, the state had to prove that Schentur was four
{¶ 82} In light of the above, we find that the verdict forms were sufficient to convict Schentur of fourth-degree felony unlawful sexual conduct with a minor. The sixth assignment of error is overruled.
{¶ 83} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
LARRY A. JONES, SR., JUDGE
EILEEN T. GALLAGHER, A.J., CONCURS;
KATHLEEN ANN KEOUGH, J., CONCURS IN JUDGMENT ONLY