STATE OF OHIO, PLAINTIFF-APPELLEE, v. LARRY SCHWABLE, DEFENDANT-APPELLANT.
CASE NO. 7-09-03
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HENRY COUNTY
December 14, 2009
[Cite as State v. Schwable, 2009-Ohio-6523.]
ROGERS, J.
Appeal from Henry County Common Pleas Court Trial Court No. 07 CR 031
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
APPEARANCES:
Kenneth J. Rexford for Appellant
John H. Hanna for Appellee
{1} Defendant-Appellant, Larry Schwable, appeals the judgment of the Court of Common Pleas of Henry County convicting him of failure to comply with an order or signal of a police officer, sentencing him to four years of community control, imposing a ninety-day jail term and a three-year driver‘s license suspension, and ordering him to pay $8,210 in restitution. On appeal, Schwable argues that the jury verdict form was insufficient under
{2} In August 2007, the Henry County Grand Jury indicted Schwable on count one: failure to comply with an order or signal of a police officer in violation of
{3} In September 2008, the matter proceeded to a jury trial, at which the following testimony was heard.
{4} Detective James Robertson of the Napoleon Police Department testified that he was assigned to road patrol duties on January 20, 20071; that he was assigned to car number twenty-eight, which is a marked patrol car; that he was also in a uniform on that day; that he and Officer Michael Foreman were dispatched to the scene of an alleged domestic violence incident where a woman had been hit by a pickup truck; that, as he headed to the scene, he was told by the dispatcher that the person driving the pickup truck was driving to Dew‘s Towing, so he activated the lights on the patrol car and proceeded in that direction; that, when he arrived at Dew‘s Towing, he saw a pickup truck in the parking lot, and he
{5} Detective Robertson continued that, when he pulled his patrol car behind Schwable‘s wrecked pickup truck, Schwable exited the truck and came towards his patrol car, saying, “come on get out, come on get out” (Id. at p. 34); that he commanded Schwable to lay on the ground, and, when he failed to comply, he spayed him with mace; that he and Officer Foreman then approached Schwable with their batons drawn, continuing to tell him to lay on the ground; that Schwable lunged at both him and Officer Foreman, and was swinging wildly; and, that he and Officer Foreman eventually wrestled Schwable to the ground and handcuffed him.
{6} Officer Michael Foreman testified that, on June 20, 2007, he received a call from the dispatcher that a man in a red truck had run over his
{7} Melissa Peper Firestone testified that she is an attorney and works in an office in Napoleon; that, on June 20, 2007, she was working in her office and heard a screeching sound; that she looked out her window and saw a red truck hit a utility pole; that a man immediately exited the truck after hitting the pole, and two police vehicles stopped near him; that two uniformed police officers exited the vehicles and were attempting to talk to the man, but he was very upset and kept lunging at the officers; and, that the police officers eventually were able to subdue the man to the ground.
{8} At the close of the State‘s presentation of evidence, Schwable made a Crim.R. 29 motion for judgment of acquittal on all counts in the indictment, arguing that the State failed to present sufficient evidence to establish that he failed to comply with an order or signal of a police officer, as evidence was not offered that the police officers approached him with an audible and visible signal
{9} After Schwable‘s presentation of evidence, Schwable was convicted of count one: failure to comply with an order or signal of a police officer, with the jury finding, pursuant to
We, the jury, find the Defendant, Larry R. Schwable guilty of failure to comply with an order or signal of a police officer.
The jury verdict form B on count one of the indictment provided that:
We, the jury, find the Defendant, Larry R. Schwable guilty of failure to comply with order or signal of a police officer, and we further find the operation of the motor vehicle by the defendant did cause a substantial risk of serious physical harm to persons or property.
However, neither verdict form stated the degree of the offense or the section number of the statute under which Schwable was convicted.
This cause came on to be heard on the 10th day of March, 2009, upon the presentence report heretofore ordered herein, * * * the defendant having been found guilty on a prior day of this Court of violation Ohio Revised Code Section 2921.331(B)(C)(5)(a)(ii), Failure to Comply with Order or Signal of Police Officer, a felony of the third degree, as to Count One of the Three Count Indictment.
(Mar. 2009 Judgment Entry, p. 1).
{11} It is from his conviction and sentence that Schwable appeals, presenting the following assignments of error for review.
Assignment of Error No. I
THE VERDICT FORM AND THE RESULTING ENTRY WERE INSUFFICIENT UNDER R.C. 2945.75 TO SUPPORT MR. SCHWABLE‘S CONVICTION AND SENTENCE FOR COUNT I, FAILURE TO COMPLY WITH AN ORDER OR SIGNAL OF A POLICE OFFICER, AS A FELONY OF THE THIRD DEGREE AS REFLECTED IN THE ENTRY.
Assignment of Error No. II
THE VERDICT FORM FOR COUNT I WAS NOT SUPPORTED BY SUFFICIENT EVIDENCE THAT MR. SCHWABLE WILLFULLY FLED FROM OR ELUDED OR FAILED TO COMPLY WITH THE ORDER OF A “POLICE OFFICER“.
{12} In his first assignment of error, Schwable argues that the jury verdict form and resulting judgment entry were insufficient to support a conviction for failure to comply with an order or signal of a police officer as a felony of the third degree pursuant to
{13}
A) When the presence of one or more additional elements makes an offense one of more serious degree:
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(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.
{14} In Pelfrey, 112 Ohio St.3d 422, the Supreme Court of Ohio addressed the issue of the specificity required in a jury verdict form pursuant to
{15} In affirming the Second Appellate District‘s decision to reverse the defendant‘s conviction for a third degree felony and remand for the entry of a conviction of a first degree misdemeanor, the Supreme Court stated, in pertinent part:
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. * * *
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 ofR.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, at ¶¶ 13-14.
{16} Additionally, this Court found in State v. Sessler, 3d Dist. No. 3-06-23, 2007-Ohio-4931 (“Sessler I“), that the holding of Pelfrey required that a third degree felony conviction for intimidation of a crime victim or witness in violation of
{17} Subsequent to our decision in Sessler I, the Supreme Court of Ohio accepted for review our implicit finding that Pelfrey was applicable to charging statutes containing separate sub-parts with distinct offense levels, and, in State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180 (Sessler II), the Supreme Court affirmed our decision.
{18} Other courts have also applied a strict interpretation of Pelfrey. See State v. Wells, 9th Dist. No. 24460, 2009-Ohio-2673 (stating that the jury verdict form finding the defendant guilty of possession of crack cocaine exceeding “ten one hundred (100) grams” was insufficient for a first degree felony conviction, as it was required to state that it was an amount exceeding one hundred grams, thereby making the finding unclear and insufficient under Pelfrey and
{19} In the case at bar, Schwable was charged by indictment with failure to comply with an order or signal of a police officer under
(A) No person shall fail to comply with any 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.
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(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:
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(ii) The operation of the motor vehicle by the offender caused a substantial risk of serious physical harm to persons or property.
{20} The general name of the offense is failure to comply with an order or signal of a police officer, but Schwable was charged under part (B) which contains the additional elements of willfully fleeing or eluding a police officer, and with the aggravating factor under (C)(5)(a)(ii), causing a substantial risk of serious physical harm to persons or property, elevating the offense to a third degree felony. However, part (A) of the jury verdict form contained a guilty finding for failure to comply with an order or signal of a police officer, which is the language contained in section (A) of the statute, and did not state the additional elements of willfully fleeing or eluding contained in section (B) of the statute. Additionally, neither the (A) nor (B) verdict form contained the degree of the offense, or the statute section number. As in Sessler, the verdict form failed to state specific elements necessary for a conviction of Section (B) of the statute. Although there was an additional finding in part (B) of the verdict form that Schwable caused a substantial risk of serious physical harm to persons or property, only section (B) of the statute can be elevated to a third degree felony by a substantial risk of harm finding. A conviction under section (A) is exclusively a first degree misdemeanor.
{21} Consequently, because the plain language of the verdict form only supports a conviction for a violation of section (A) of the statute, the jury finding
{22} Although we note that Schwable was charged under section (B) of the statute; that the jury was instructed under section (B) of the statute; and, that the general name of the offense is also the same language used under section (A) of the statute, and the language found in the jury verdict form, we feel compelled to follow a strict application of Pelfrey and look only toward the language of the verdict form and not any additional circumstances. See Pelfrey, 112 Ohio St.3d 422, at ¶14. Consequently, without a jury verdict form stating the degree of the offense or a proper finding of an aggravating factor, we find the verdict fails to comply with
{23} Accordingly, we sustain Schwable‘s first assignment of error.
Assignment of Error No. II
{24} In his second assignment of error, Schwable argues that insufficient evidence was presented at trial to support his conviction. Specifically, Schwable contends that no evidence was presented at trial demonstrating that the detective was authorized to direct or regulate traffic, or to make arrests for violations of
{25} When an appellate court reviews a record for sufficiency, the relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. State v. Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, ¶47, citing State v. Jenks (1981), 61 Ohio St.3d 259, superseded by state constitutional amendment on other grounds as stated in State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355. Sufficiency is a test of adequacy, State v. Henry, 3d Dist. No. 13-08-10, 2009-Ohio-3535, ¶20, and the question of whether evidence is sufficient to sustain a verdict is one of law. State v. Robinson (1955), 162 Ohio St. 486, superseded by state constitutional amendment on other grounds as stated in Smith, supra.
{26}
(B)(1) Notwithstanding any general, special, or local law or charter to the contrary, and except as otherwise provided in this section, no person shall receive an original appointment on a permanent basis as any of the following unless the person previously has been awarded a certificate by the executive director of the Ohio peace officer training commission attesting to the person‘s satisfactory completion of an approved state, county, municipal, or department of natural resources peace officer basic training program:
(a) A peace officer of any county, township, municipal corporation, regional transit authority, or metropolitan housing authority;
{28} Here, Detective Robertson testified that he was employed as a detective by the Napoleon Police Department. Although there was no evidence presented that he was a certified police officer, or that he was authorized to regulate or direct traffic, no such evidence was needed, as all police officers are certified, and, therefore, authorized to direct or regulate traffic, pursuant to
{29} Accordingly, we overrule Schwable‘s second assignment of error.
{30} Having found no error prejudicial to the appellant herein, in the particulars assigned and argued in his second assignment of error, but having found error prejudicial to the appellant herein, in the particulars assigned and argued in his first assignment of error, we affirm in part, and reverse in part, the judgment of the trial court, and remand for a modification of Schwable‘s conviction to a misdemeanor of the first degree and resentencing accordingly.
Judgment Affirmed in Part, Reversed in Part and Cause Remanded
PRESTON, P.J. concurs.
SHAW, J., concurs in Judgment Only.
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