[Cite as State v. Mayo, 2017-Ohio-1249.]


                                       COURT OF APPEALS
                                      KNOX COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT

                                                      JUDGES:
STATE OF OHIO                                 :       Hon. W. Scott Gwin, P.J.
                                              :       Hon. William B. Hoffman, J.
                         Plaintiff-Appellee   :       Hon. Earle E. Wise, J.
                                              :
-vs-                                          :
                                              :       Case No. 16CA26
MICHAEL MAYO                                  :
                                              :
                    Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                          Criminal appeal from the Knox County
                                                  Court of Common Pleas, Case No.
                                                  16CR06-100



JUDGMENT:                                         Reversed and remanded




DATE OF JUDGMENT ENTRY:                           April 3, 2017


APPEARANCES:

For Plaintiff-Appellee                            For Defendant-Appellant
CHARLES MCCONVILLE                                ERIC C. NEMECEK
117 East High Street, Suite 234                   1360 East 9th Street, Suite 650
Mount Vernon, OH 43050                            Cleveland, OH 44114
[Cite as State v. Mayo, 2017-Ohio-1249.]


Gwin, P.J.

        {¶1}    Appellant Michael Mayo appeals his conviction of one count of importuning.

The State of Ohio is the appellee.

                                           Facts & Procedural History

        {¶2}    Appellant posted an ad on Craigslist. Detective Bobo of the Knox County

Sheriff’s Office responded to appellant’s ad. Detective Bobo sent a picture of his fake

persona to appellant saying, “Hi I’m Hannah,” and giving appellant a cell phone number

to text. Appellant responded and they texted back and forth. The conversation turned

sexual. Detective Bobo testified he held himself out to be fifteen years of age and in high

school. Appellant set up a time and place to meet with “Hannah.” After confirming

appellant’s identity through pictures, Detective Bobo found appellant had a gray Toyota

Tundra registered in his name. Detective Bobo stated that appellant arrived at the

appointed time to meet “Hannah” in the Toyota Tundra by the meeting spot.

        {¶3}    Detective Bobo conducted a traffic stop of appellant’s vehicle near the

location where appellant and “Hannah” planned to meet.                  Detective Bobo testified

appellant admitted it was him texting with “Hannah,” but said he was there to meet a girl

to have dinner. Appellant was arrested. Appellant testified at trial that he thought

“Hannah” was lying about her age when she said she was fifteen years old because he

looked at a Facebook page of her and saw she was an older adult female.

        {¶4}    On June 7, 2016, appellant was indicted on one count of importuning in

violation of R.C. Section 2907.07(D)(2). Appellant was arraigned and pled not guilty to

the charge on June 10, 2016. On June 13, 2016, the trial court set the matter for a jury
Knox County, Case No. 16CA26                                                                 3


trial. Appellant filed a motion to continue the jury trial. The trial court granted appellant’s

motion to continue and rescheduled the trial for October 25, 2016.

       {¶5}    On October 21, 2016, appellant filed a “waiver of right to jury trial.” The

waiver was signed by appellant and appellant’s attorney. The waiver stated as follows:

“Now comes the defendant, Michael A. Mayo, who hereby knowingly, intelligently, and

voluntarily waives his right to a trial by jury. Defendant requests that this matter proceed

to a trial to the Court.”

       {¶6}    The trial court conducted a bench trial on October 25, 2016.             At the

beginning of the trial, the trial court stated, “Let the record show the Defendant, Michael

Mayo, is present in the courtroom represented by Attorney Jim Giles; the State’s in the

courtroom in the person of Chip McConville, Knox County Prosecuting Attorney. This

matter is set for a bench trial, Defendant having waived jury on October 21st.” The trial

court then asked the parties if they were ready to proceed. After both parties confirmed

they were ready to proceed, the State made its opening statement.

       {¶7}    Detective Bobo and appellant testified at the bench trial. On October 26,

2016, the trial court issued a judgment entry finding appellant guilty of one count of

importuning in violation of R.C. 2907.07(D)(2), ordering a pre-sentence investigation, and

scheduling a sentencing hearing for December 2, 2016. At the sentencing hearing, the

trial court sentenced appellant to eleven months in prison and classified him as a Tier I

sexual offender.

       {¶8}    Appellant appeals his conviction and assigns the following as error:

       {¶9}    “I. THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONDUCT A

BENCH TRIAL IN THIS CASE.
Knox County, Case No. 16CA26                                                               4


       {¶10} “II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO

SUSTAIN A CONVICTION IN THIS CASE.

       {¶11} “III. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO

CONSTRUCTIVELY AMEND THE INDICTMENT.

       {¶12} “IV. THE TRIAL COURT ERRED BY REJECTING MAYO’S ENTRAPMENT

DEFENSE.”

                                                 I.

       {¶13} In his first assignment of error, appellant argues the trial court did not have

jurisdiction to conduct a bench trial in this case. Specifically, appellant contends the jury

waiver was not properly executed and failed to substantially comply with R.C. 2945.05

because it was not made in open court.

       {¶14} R.C. 2945.05 governs the waiver of the right to a jury trial. The Supreme

Court of Ohio reviewed R.C. 2945.05 in State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-

4277, 872 N.E.2d 279 in which the defendant signed a written jury waiver, but was not

questioned in open court regarding the waiver. Instead, the trial court stated in open court

that there would be a waiver of a jury trial. Id. The Supreme Court found a valid jury

waiver must meet five conditions; it 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.

       {¶15} As to the open court requirement, the Supreme Court held, “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.” Id. Absent such evidence, the waiver

does not comply with the requirements of R.C. 2945.05 and is therefore invalid. Id; State
Knox County, Case No. 16CA26                                                                5

v. George, 5th Dist. Licking No. 2010CA00001, 2010-Ohio-3375; State v. Teagarden, 5th

Dist. Licking No. 08-CA-39, 2008-Ohio-6986.

       {¶16} This case is analogous to the Lomax case where four of the five

requirements are not at issue. Appellant signed a written waiver, which was filed on

October 21, 2016, and was made a part of the record. A written waiver is presumptively

voluntary, knowing, and intelligent. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277,

872 N.E.2d 279. While this Court has previously held nothing in R.C. 2945.05 requires a

trial court engage in a colloquy with the defendant before accepting his waiver of a jury,

we have held there must be some evidence in the record that the defendant

acknowledged, in open court and in the presence of counsel, if represented, that he

desires to waive his right to a jury trial. State v. Teagarden, 5th Dist. Licking No. 08-CA-

39, 2008-Ohio-6986.

       {¶17} Aside from the passing reference to the jury waiver of October 21st, the trial

court did not address appellant and have him acknowledge in open court and in the

presence of counsel that he was waiving his right to a jury trial. Because there is no

indication from the transcript, nor any other evidence in the record, that appellant waived

his right to a jury trial in open court, the requirements of R.C. 2945.05 were not met in this

case and the waiver must be deemed invalid. In addition, appellee concedes in its brief

that this case is analogous to the Lomax case, that the record in this case is devoid of

any evidence appellant acknowledged the waiver in open court and in the presence of

counsel, and that the trial court erred in not having appellant acknowledge the previously-

filed written waiver.
Knox County, Case No. 16CA26                                                            6


      {¶18} The Ohio Supreme Court and this Court have previously held that the

proper remedy when a jury waiver is invalid is to remand the case to the trial court for a

new trial. State v. Pless, 74 Ohio St.3d 333, 1996-Ohio-102, 658 N.E.2d 766; State v.

White, 5th Dist. Muskingum No. CT2013-0039, 2013-Ohio-5858.              Appellant’s first

assignment of error is sustained.



                                           II., III., IV.

      {¶19} Based upon our decision in Assignment of Error I which necessitates a new

trial, we find these assignments of error are moot. State v. White, 5th Dist. Muskingum

No. CT2013-0039, 2013-Ohio-5858; State v. George, 5th Dist. Licking No. 2010CA00001,

2010-Ohio-3375.
Knox County, Case No. 16CA26                                                     7


      {¶20} Accordingly, appellant’s first assignment of error is sustained and the

second, third, and fourth assignments of error are moot. The judgment of the Knox

County Court of Common Pleas is reversed and remanded for a new trial.


By Gwin, P.J.,

Hoffman, J., and

Wise, Earle, J., concur
