[Cite as State v. Bell, 2017-Ohio-7512.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       GREENE COUNTY

 STATE OF OHIO                                   :
                                                 :
          Plaintiff-Appellee                     :   Appellate Case No. 2017-CA-8
                                                 :
 v.                                              :   Trial Court Case No. 2015-CR-723
                                                 :
 NICOLETTE E. BELL                               :   (Criminal Appeal from
                                                 :   Common Pleas Court)
          Defendant-Appellant                    :
                                                 :

                                            ...........

                                           OPINION

                           Rendered on the 8th day of September, 2017.

                                            ...........

NATHANIEL R. LUKEN, Atty. Reg. No. 0087864, Assistant Prosecuting Attorney, Greene
County Prosecutor’s Office, 61 Greene Street, Xenia, Ohio 45385
      Attorney for Plaintiff-Appellee

BEN M. SWIFT, Atty. Reg. No. 0065745, P.O. Box 49637, Dayton, Ohio 45449
     Attorney for Defendant-Appellant

                                           .............




WELBAUM, J.
                                                                                            -2-




       {¶ 1} Defendant-appellant, Nicolette E. Bell, appeals from her conviction for

felonious assault, abduction, and assault following a bench trial in the Greene County

Court of Common Pleas. In support of her appeal, Bell contends that the trial court

lacked jurisdiction to conduct a bench trial because she did not validly waive her right to

a jury trial.   Bell also contends that her conviction was not supported by sufficient

evidence and was against the manifest weight of the evidence. In addition, Bell claims

that the trial court erred in failing to merge her convictions for felonious assault and

abduction. The State concedes and we agree that Bell did not validly waive her right to

a jury trial; accordingly, the judgment of the trial court will be reversed and the matter will

be remanded for a new trial.



                            Facts and Course of Proceedings

       {¶ 2} On December 7, 2015, the Greene County Grand Jury returned an indictment

charging Bell with one count of felonious assault in violation of R.C. 2903.11(A)(1), a

felony of the second degree; one count of abduction in violation of R.C. 2905.02(A)(2), a

felony of the third degree; and one count of assault in violation of R.C. 2903.13(A), a first-

degree misdemeanor. On January 8, 2016, Bell entered a not guilty plea to all the

charges and the matter was scheduled for a jury trial.

       {¶ 3} Three days before trial, on October 7, 2016, Bell’s counsel filed a “Motion to

Withdraw Jury Demand” signed by Bell that stated: “Now comes the Defendant, by and

through counsel, and hereby withdraws her Jury Demand filed herein.”                Motion to

Withdraw Jury Demand (Oct. 7, 2016), Greene County Court of Common Pleas Case No.
                                                                                        -3-


2015-CR-723, Docket No. 76. The trial court granted the motion via an entry filed on

October 7, 2016. The trial court then held a three-day bench trial that concluded on

October 12, 2016.

       {¶ 4} Following the bench trial, the trial court found Bell guilty as charged. The

trial court then sentenced Bell to four years in prison for felonious assault and twelve

months in prison for abduction. The trial court did not impose a prison term for the

misdemeanor assault. The prison sentences for felonious assault and abduction were

ordered to run concurrently for a total prison term of four years.

       {¶ 5} Bell now appeals from her conviction, raising three assignments of error for

review.



                                First Assignment of Error

       {¶ 6} Bell’s First Assignment of Error is as follows:

       THE TRIAL COURT LACKED JURISDICTION TO TRY BELL WITHOUT A

       JURY.

       {¶ 7} Under her First Assignment of Error, Bell contends that the trial court lacked

jurisdiction to conduct a bench trial because she did not validly waive her right to a jury

trial. Bell claims that her waiver was invalid because it did not strictly comply with the

requirements set forth in R.C. 2945.05. The State concedes error in this regard and

agrees that the matter should be remanded for a new trial.

       {¶ 8} R.C. 2945.05 sets forth the manner in which a defendant may waive his or

her right to a jury trial. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d

279, ¶ 6. The statute provides as follows:
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              In all criminal cases pending in courts of record in this state, the

       defendant may waive a trial by jury and be tried by the court without a jury.

       Such waiver by a defendant, shall be in writing, signed by the defendant,

       and filed in said cause and made a part of the record thereof. It shall be

       entitled in the court and cause, and in substance as follows: “I __________,

       defendant in the above cause, hereby voluntarily waive and relinquish my

       right to a trial by jury, and elect to be tried by a Judge of the Court in which

       the said cause may be pending. I fully understand that under the laws of

       this state, I have a constitutional right to a trial by jury.”

              Such waiver of trial by jury must be made in open court after the

       defendant has been arraigned and has had opportunity to consult with

       counsel. Such waiver may be withdrawn by the defendant at any time

       before the commencement of the trial.

R.C. 2945.05.

       {¶ 9} Based on this statute, the Supreme Court of Ohio has identified five

conditions that must be satisfied in order for a jury waiver to be valid. Lomax at ¶ 9.

The jury waiver must be: “(1) in writing, (2) signed by the defendant, (3) filed, (4) made

part of the record, and (5) made in open court.” Id. Trial courts must strictly comply with

these requirements. State v. Grier, 2d Dist. Montgomery No. 23662, 2010-Ohio-5751, ¶

15, citing State v. Pless, 74 Ohio St.3d 333, 337 and 339, 658 N.E.2d 766 (1996). (Other

citation omitted.) “In the absence of strict compliance with R.C. 2945.05, a trial court

lacks jurisdiction to try the defendant without a jury.” Pless at 337, citing State v. Tate,

59 Ohio St.2d 50, 391 N.E.2d 738 (1979) and State ex rel. Jackson v. Dallman, 70 Ohio
                                                                                       -5-


St.3d 261, 638 N.E.2d 563 (1994).

      {¶ 10} While there must be strict compliance with the five conditions in R.C.

2945.05, we note that a written jury waiver need only substantially comply with the

language suggested in R.C. 2945.05, making a verbatim recitation of the statutory

language unnecessary. State v. Webb, 10th Dist. Franklin No. 10AP-289, 2010-Ohio-

6122, ¶ 26-27, citing State v. Townsend, 3d Dist. Marion No. 9-03-40, 2003-Ohio-6992,

¶ 16. (Other citations omitted.)

      {¶ 11} “ ‘To satisfy the “in open court” requirement in R.C. 2945.05, there must be

some evidence in the record that the defendant, while in the courtroom and in the

presence of counsel, if any, acknowledged the jury waiver to the trial court.’ ” State v.

Brewer, 2d Dist. Montgomery Nos. 22159, 22160, 2008-Ohio-2715, ¶ 27, quoting Lomax,

114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279 at paragraph two of the syllabus.

“[A] trial court does not need to engage in an extended colloquy with the defendant in

order to comply with the statutory requirement that a jury waiver be made in open court.

There must be, however, some evidence in the record of the proceedings that the

defendant acknowledged the waiver to the trial court while in the presence of counsel, if

any. Absent such evidence, the waiver does not comply with the requirements of R.C.

2945.05 and is therefore invalid.” Lomax at ¶ 42.

      {¶ 12} R.C. 2945.05 must be read in conjunction with Crim.R. 23(A), which also

governs the waiver of a defendant’s right to a jury trial. State v. Burnside, 186 Ohio

App.3d 733, 2010-Ohio-1235, 930 N.E.2d 372, ¶ 47 (2d Dist.). “Crim.R. 23(A) allows a

defendant to waive his right to a trial by jury in serious offense cases provided that the

waiver is made knowingly, intelligently, and voluntarily, and in writing.”      (Footnote
                                                                                           -6-

omitted.) Lomax at ¶ 6. Specifically, Crim.R. 23(A) provides that:

              In serious offense cases the defendant before commencement of the

       trial may knowingly, intelligently and voluntarily waive in writing his right to

       trial by jury. Such waiver may also be made during trial with the approval

       of the court and the consent of the prosecuting attorney. In petty offense

       cases, where there is a right of jury trial, the defendant shall be tried by the

       court unless he demands a jury trial. Such demand must be in writing and

       filed with the clerk of court not less than ten days prior to the date set for

       trial, or on or before the third day following receipt of notice of the date set

       for trial, whichever is later. Failure to demand a jury trial as provided in this

       subdivision is a complete waiver of the right thereto.

       {¶ 13} We note that the language of Crim.R. 23(A) distinguishes between jury-trial

waivers in “serious offense cases” and “petty offense cases.” A “petty offense” is defined

in Crim.R. 2(D) as “a misdemeanor other than a serious offense.” A “serious offense” is

defined in Crim.R. 2(C) as “any felony, and any misdemeanor for which the penalty

prescribed by law includes confinement for more than six months.”

       {¶ 14} The State concedes that this is a “serious offense case” because it involves

serious offenses, including felonious assault and abduction, which are second and third-

degree felonies that carry prison terms greater than six months.            R.C. 2929.14(A).

Therefore, in order to comply with Crim.R. 23(A), Bell had to knowingly, intelligently, and

voluntarily waive her right to a jury trial in writing. To meet this requirement, “some type

of colloquy must occur between the defendant and the trial court.” State v. Anderson,

1st Dist. Hamilton No. C-070098, 2007-Ohio-6218, ¶ 8.
                                                                                               -7-


       {¶ 15} After a thorough review of the record, we find that the jury-waiver

requirements in R.C. 2945.05 and Crim.R. 23(A) were not satisfied in this case. In an

effort to waive Bell’s right to a jury trial, Bell’s trial counsel filed a one sentence “Motion to

Withdraw Jury Demand” that stated: “Now comes the Defendant, by and through counsel,

and hereby withdraws her Jury Demand filed herein.” Motion to Withdraw Jury Demand

(Oct. 7, 2016), Greene County Court of Common Pleas Case No. 2015-CR-723, Docket

No. 76. The motion contains no language indicating Bell understood that she had a

constitutional right to a jury trial or that her waiver of that right was voluntary.

Accordingly, the motion does not substantially comply with the language suggested in

R.C. 2945.05. See, e.g., State v. Woodbridge, 9th Dist. Summit No. 26911, 2014-Ohio-

1338, ¶ 6-9 (holding a jury waiver was invalid because there was nothing in the waiver

indicating that the defendant understood that he had a constitutional right to a jury trial).

       {¶ 16} The attempted jury waiver was also never made in open court. The only

reference to the jury waiver in open court was the following discussion between the trial

court and defense counsel:

       THE COURT:                    Let the record reflect that we’re here today for a

                                     trial to the bench, also known as to the Court,

                                     with the Defendant having withdrawn their

                                     demand for jury trial.      Now is that a correct

                                     statement Mr. Wilcoxson?

       DEFENSE COUNSEL:              That is correct Your Honor.

       THE COURT:                    Very good. * * *

Trial Trans. (Oct. 10, 2016), p. 1-2.
                                                                                            -8-


       {¶ 17} During the foregoing discussion, Bell never acknowledged the jury waiver

to the trial court, as the trial court never personally addressed her. Rather, the trial court

simply confirmed with defense counsel that Bell had withdrawn her “demand for a jury

trial.” We note that a jury demand was never actually filed and was unnecessary given

that this is a “serious offense case” for which Bell was entitled to a jury trial regardless of

whether a jury demand was made. Crim.R. 23(A); State v. Zaken, 11th Dist. Ashtabula

No. 2006-A-0036, 2007-Ohio-2306, ¶ 32 (“In a ‘serious offense’ case, which is punishable

by more than six months confinement, the right to a jury trial is automatic since no written

jury demand must be made.”).

       {¶ 18} In addition to failing to comply with the requirements of R.C. 2945.05, there

is nothing in the record indicating that the attempted jury waiver was made knowingly,

intelligently and voluntarily as required by Crim.R. 23(A). More specifically, there was

no colloquy between the trial court and Bell indicating that Bell knowingly, intelligently and

voluntarily waived her right to a jury trial.

       {¶ 19} Finally, we note that “ ‘[t]he fact that [Bell] did not object to the trial court

proceeding with a bench trial is of no matter. Silent acquiescence to a bench trial is not

sufficient to constitute a waiver of a defendant’s right to a jury trial.’ ” Grier, 2d Dist.

Montgomery No. 23662, 2010-Ohio-5751 at ¶ 15, quoting Tate, 59 Ohio St.2d at 53, 391

N.E.2d 738.

       {¶ 20} For the foregoing reasons, we conclude that Bell did not validly waive her

right to a jury trial as prescribed by R.C. 2945.05 and Crim.R. 23(A). As a result, the trial

court did not have jurisdiction to conduct a bench trial. Accordingly, the matter must be

reversed and remanded for a new trial.
                                                                                      -9-


      {¶ 21} Bell’s First Assignment of Error is sustained.



                       Second and Third Assignments of Error

      {¶ 22} Bell’s Second and Third Assignments of Error are as follows:

      II.    THE EVIDENCE PRESENTED AT TRIAL IS INSUFFICIENT TO

             SUSTAIN BELL’S CONVICTIONS AND BELL’S CONVICTIONS

             ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.

      III.   BELL’S     CONVICTION       FOR    ABDUCTION       SHOULD      HAVE

             MERGED WITH HER CONVICTION FOR FELONIOUS ASSAULT.

      {¶ 23} In light of our disposition on Bell’s First Assignment of Error, her Second

and Third Assignments of Error are rendered moot and are overruled on that basis.



                                      Conclusion

      {¶ 24} Having sustained Bell’s First Assignment of Error, the judgment of the trial

court is reversed and the matter is remanded for a new trial.



                                    .............



HALL, P.J. and TUCKER, J., concur.



Copies mailed to:

Nathaniel R. Luken
Ben M. Swift
Hon. Michael A. Buckwalter
