[Cite as State v. Schwable, 2009-Ohio-6523.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                               HENRY COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 7-09-03

        v.

LARRY SCHWABLE,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Henry County Common Pleas Court
                            Trial Court No. 07 CR 031

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                          Date of Decision:    December 14, 2009




APPEARANCES:

        Kenneth J. Rexford for Appellant

        John H. Hanna for Appellee
Case No. 7-09-03


ROGERS, J.

       {¶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 R.C. 2945.75 to

support a conviction for failure to comply with an order or signal of a police

officer as a felony of the third degree under R.C. 2921.331(B),(C)(5)(a)(ii)

because the verdict form only contained the statutory language for a violation of

R.C. 2921.331(A), a first degree misdemeanor. Schwable also argues that his

conviction was not supported by sufficient evidence, as the State did not present

evidence demonstrating that the detective in question met the definition of a police

officer pursuant to R.C. 4511.01, as was necessary for a conviction under R.C.

2921.331. Based on the following, we affirm in part, and reverse in part, the

judgment of the trial court.

       {¶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 R.C. 2921.331(B),(C)(5)(a)(ii), a felony of the third degree; count two: assault

in violation of R.C. 2903.13(A),(C)(3), a felony of the fourth degree; and, count



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three: assault in violation of R.C. 2903.13(A),(C)(3), a felony of the fourth degree.

The indictment arose from an incident during which the police confronted

Schwable after he left the scene of an alleged domestic violence incident, and

during which Schwable fled in his vehicle after being told by an officer to stop,

crashed his vehicle into a telephone pole, and was involved in an altercation with

officers. Subsequently, Schwable entered a plea of not guilty by reason of insanity

to all counts in the indictment.

        {¶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


1
  Although Detective Robertson testified that this incident occurred on January 20, we find this to be an
accidental misstatement, as the event occurred on June 20, and Detective Robertson made other references
to June 20, including that the schedule he was on at the time lasted from June 18 to July 1, and that he was
wearing his summer uniform on this date.


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Case No. 7-09-03


turned his lights and sirens off; that he pulled his patrol car in front of the truck,

exited the car, and began to walk around the truck with his weapon drawn, as he

was told by the dispatcher that the truck was used as a weapon to run someone

over; that he then saw Schwable run to his truck; that he went to the passenger side

of the truck with his weapon drawn and told Schwable to get out of the truck; that

Schwable stated, “no, * * * shoot me, suicide by cop, that’s what I want, kill me”

(trial tr., pp. 31-32); that Schwable put the truck in gear and sped away; that he

chased Schwable in his patrol car with the lights and sirens on; and, that Schwable

ran his truck into a utility pole as he was trying to make a turn.

       {¶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



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girlfriend and was headed in his direction; that he pursued the vehicle in his patrol

car with the lights and sirens on; that he then heard the dispatcher state that the

vehicle crashed, so he drove to the crash scene; that, when he arrived at the scene,

he observed Schwable in an altercation with Detective Robertson, with Schwable

swinging at him and Detective Robertson deploying mace; and, that, eventually,

both he and Detective Robertson were able to wrestle Schwable to the ground and

handcuff him.

       {¶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



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indicating that they were police officers, and that evidence was not presented

demonstrating there to be a substantial risk of serious physical harm to persons or

property. Additionally, Schwable argued that insufficient evidence was presented

to show that he assaulted the police officers, as the uncontroverted testimony was

that he did not strike or touch the officers. Subsequently, the trial court overruled

Schwable’s motion.

       {¶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 R.C. 2921.331(B),(C)(5)(a)(ii), that Schwable caused a

substantial risk of serious physical harm to persons or property. However, the jury

found Schwable not guilty on counts two and three of the indictment. The jury

verdict form A on count one of the indictment provided that:

       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.




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       {¶10} In March 2009, the trial court sentenced Schwable to a ninety-day

jail term, imposed four years of community control and a three-year driver’s

license suspension, and ordered him to pay $8,210 in restitution. The trial court’s

judgment entry stated, in pertinent part:

       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”.




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                             Assignment of Error No. I

       {¶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 R.C. 2921.331(B),(C)(5)(a)(ii). Specifically, he contends that,

because the jury verdict form failed to include the degree of the offense and

contained the statutory language for a violation of R.C. 2921.331(A), the jury

finding that he created a substantial risk of serious physical harm to persons or

property is not sufficient to elevate his offense to a third degree felony because

only violations under R.C. 2921.331(B) can be elevated above a first degree

misdemeanor. Accordingly, he argues that his conviction can only be for the

lowest degree of the offense, a first degree misdemeanor. We agree.

       {¶13} R.C. 2945.75(A)(2) provides as follows:

       A) When the presence of one or more additional elements
       makes an offense one of more serious degree:

       ***

       (2) A guilty verdict shall state either the degree of the offense of
       which the offender is found guilty, or that such additional
       element or elements are present. Otherwise, a guilty verdict
       constitutes a finding of guilty of the least degree of the offense
       charged.

       {¶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


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R.C 2945.75(A)(2) to support a conviction for the greater degree of an offense. In

Pelfrey, the defendant was charged with tampering with records in violation of

R.C. 2913.42, with an enhanced charge to a third degree felony for tampering with

government records pursuant to R.C. 2913.42(B)(4).              The defendant was

subsequently convicted and sentenced on the third degree felony conviction. On

appeal, he argued that the jury verdict form and resulting judgment entry of

conviction were insufficient to support his conviction for a felony of the third

degree, as the verdict form and judgment entry did not state the degree of the

offense or contain a finding that government records were involved. Accordingly,

he argued that, pursuant to R.C. 2945.75(A)(2), his conviction should only be for

the lowest degree of the offense, a first degree misdemeanor.

        {¶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 under R.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. * * *




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       Because the language of R.C. 2945.75(A)(2) is clear, this court
       will not excuse the failure to comply with the statute or uphold
       Pelfrey’s conviction based on additional circumstances such as
       those present in this case. The express requirement of the
       statute cannot be fulfilled by demonstrating additional
       circumstances, such as that the verdict incorporates the
       language of the indictment, or by presenting evidence to show
       the presence of the aggravated element at trial or the
       incorporation of the indictment into the verdict form, or by
       showing that the defendant failed to raise the issue of the
       inadequacy of the verdict form. We hold that pursuant to the
       clear language of R.C. 2945.75, a verdict form signed by a jury
       must include either the degree of the offense of which the
       defendant is convicted or a statement that an aggravating
       element has been found to justify convicting a defendant of a
       greater degree of a criminal offense.

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 R.C. 2921.04(B) must be remanded for a first degree misdemeanor conviction

under R.C. 2921.04(A) because the jury verdict form only found the defendant

guilty of intimidation “in manner and form as he stands charged in the

indictment,” and failed to include the degree of the offense, the statutory section of

the offense, or any finding of the aggravating factor elevating the offense to a third

degree felony. In Sessler, we strictly construed Pelfrey and found that, even

though “Sessler was properly charged, the jury instructions specified the correct

offense and degree, and the verdict form incorporated by reference the


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indictment,” the third degree felony conviction could not stand because the

requirements of R.C. 2945.75 were not met, as the jury verdict form did not

contain the degree of the offense or a finding of the aggravating factor. Sessler,

2007-Ohio-4931, at ¶13.

       {¶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 R.C.

2945.75); State v. Keith, 12th Dist. No. 2007-07-161, 2008-Ohio-348 (finding that

the jury verdict forms reciting a guilty finding for tampering with records as

charged in the indictment were insufficient pursuant to Pelfrey and R.C. 2945.75

to enhance the convictions to third degree felonies for tampering with government

records, as the verdicts did not contain the degree of the offense or a finding of the



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aggravating factor, even though the indictment properly charged the aggravating

factor.)

       {¶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 R.C.

2921.331(B),(C)(5)(a)(ii). The statute provides, in pertinent part:

       (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.

       ***

       (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.



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R.C. 2921.331.

       {¶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




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that Schwable created a substantial risk of harm is rendered meaningless, and only

a first degree misdemeanor conviction under section (A) of the statute can stand.

       {¶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 R.C. 2945.75 to support a conviction for a third degree felony under

section (B),(C)(5)(a)(ii) of the statute, and we must remand to the trial court for

the entry of a conviction for the least degree of the offense, a first degree

misdemeanor under section (A) of the statute.

       {¶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



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traffic regulations, as was required for a conviction of failure to comply with an

order or signal of a police officer. We disagree.

       {¶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} R.C. 2921.331 sets forth the offense of failure to comply with an

order or signal of a police officer, and provides that “police officer,” as used in the

statute, “has the same meaning as in section 4511.01 of the Revised Code.” R.C.

2921.331(F)(2). Under R.C. 4511.01(Z), “police officer” is defined as “every

officer authorized to direct or regulate traffic, or to make arrests for violations of

traffic regulations.” When referring to an officer who is “authorized to direct or

regulate traffic,” the definition is referring to a certified police officer.



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       {¶27} R.C. 109.77 provides certification requirements for all peace

officers. The statute states, in pertinent part:

       (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;

R.C. 109.77(B)(1)(a). Furthermore, the definition of “peace officer” includes a

“member of the organized police department of a township or municipal

corporation.”    R.C. 109.71(A)(1).       Consequently, it follows that, because a

municipal police officer is a peace officer, and no peace officer can be hired

without being certified by the Ohio Peace Officer Training Commission, all police

officers are certified.

       {¶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 R.C.



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109.77. Consequently, we find that sufficient evidence was presented to establish

that Detective Robertson was a “police officer” under R.C. 2921.331 and R.C.

4511.01(Z), and, therefore, sufficient evidence existed to support Schwable’s

conviction for failure to comply with an order or signal of a police officer.

       {¶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.

/jlr




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