[Cite as State v. Gregory, 2013-Ohio-853.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 6-12-02

        v.

TRACE ELLIOT GREGORY,                                    OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Hardin County Common Pleas Court
                            Trial Court No. 20112177CRI

                       Judgment Reversed and Cause Remanded

                            Date of Decision:   March 11, 2013




APPEARANCES:

        Michael J. Short for Appellant

        Bradford W. Bailey and Siobhonne K. Ward for Appellee
Case No. 6-12-02


ROGERS, J.

       {¶1} Defendant-Appellant, Trace Elliot Gregory, appeals the judgment of

the Court of Common Pleas of Hardin County, finding him guilty of domestic

violence and sentencing him to a 36 month prison term. On appeal, Gregory

contends that the verdict form is insufficient under R.C. 2945.75(A)(2) to support

his conviction for domestic violence as a third degree felony, and that the trial

court erred when it informed him that he was subject to three years of optional

post-release control.   Based on the following, we reverse the trial court’s

judgment.

       {¶2} On August 13, 2011, Julie Hobarty appeared at Glenn Moyer’s

residence covered in blood and asked him to call law enforcement. According to

Moyer, Hobarty informed him that a man had beaten her. Upon arrival, law

enforcement found Hobarty at Moyer’s residence and observed blood coming

from her nose and covering her clothing. Hobarty informed the officers that her

boyfriend, Gregory, had struck her in the nose.

       {¶3} On September 9, 2011, the Hardin County Grand Jury returned an

indictment charging Gregory with a single count of domestic violence in violation

of R.C. 2919.25(A), (D)(4), a felony of the third degree.




                                        -2-
Case No. 6-12-02


       {¶4} On February 2, 2012, the matter proceeded to a jury trial. That same

day, the jury returned a verdict of guilty on the sole count. Later that same month,

the trial court sentenced Gregory to a prison term of 36 months.

       {¶5} It is from this judgment Gregory appeals, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT [ERRED] IN SENTENCING THE
       DEFENDANT TO 36 MONTHS IN PRISON AS THE
       VERDICT FORM WAS SUFFICIENT ONLY TO CONVICT
       THE DEFENDANT OF A FIRST DEGREE MISDEMEANOR.

                           Assignment of Error No. II

       THE TRIAL COURT ERRED WHEN IT INFORMED THE
       DEFENDANT THAT HE WAS SUBJECT TO THREE YEARS
       OF OPTIONAL POST-RELEASE CONTROL.

                            Assignment of Error No. I

       {¶6} In his first assignment of error, Gregory contends that the verdict

form is insufficient under R.C. 2945.75(A)(2) to support his conviction for

domestic violence as a third degree felony. We agree.

       {¶7} Initially, we note that Gregory did not object to the verdict form at

trial. As a result, Gregory has forfeited all but plain error. State v. Eafford, 132

Ohio St.3d 159, 2012-Ohio-2224, ¶ 11. In order to have plain error under Crim.R.

52(B), there must be an error, the error must be an “obvious” defect in the trial

proceedings, and the error must have affected “substantial rights.” State v. Barnes,

                                        -3-
Case No. 6-12-02


94 Ohio St.3d 21, 27 (2002). Plain error is to be used “with the utmost caution,

under exceptional circumstances, and only to prevent a manifest miscarriage of

justice.” Id. Accordingly, plain error exists only in the event that it can be said

that “but for the error, the outcome of the trial would clearly have been otherwise.”

State v. Biros, 78 Ohio St.3d 426, 431 (1997).

       {¶8} R.C. 2945.75 provides, in relevant part:

       (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.

       {¶9} The Supreme Court first considered the effect of not complying with

R.C. 2945.75(A)(2) in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256.

Pelfrey was charged with tampering with government records in violation R.C.

2913.42(A)(1), (B)(4), a felony of the third degree. See State v. Pelfrey, 2d Dist.

No. 19955, 2004-Ohio-3401. The verdict form for that count stated:

       We, the jury, upon the issues joined in this case, do find the
       Defendant, David L. Pelfrey, Guilty of the offense of Tampering
       With Records as charged in the indictment. State v. Pelfrey, 2d Dist.
       No. 19955, 2005-Ohio-5006, ¶ 10.

Subsequently, Pelfrey was convicted of tampering with records as a third degree

felony. While Pelfrey did not challenge the verdict form before the trial court or

                                         -4-
Case No. 6-12-02


on direct appeal, the court of appeals reopened the appeal under App.R. 26(B). Id.

at ¶ 4.     Pelfrey argued that the verdict form did not comply with R.C.

2945.75(A)(2), and therefore his conviction should be reduced to the lowest

degree of the offense charged, a first degree misdemeanor. Id. at ¶ 5; R.C.

2913.42(B)(2).     The court of appeals agreed and reversed the trial court’s

judgment.    Id. at ¶ 23, 26.       Subsequently, the Supreme Court accepted

discretionary appeal and certified conflict among the courts of appeals.

       {¶10} The Supreme Court addressed the following certified question:

       Whether the trial court is required as a matter of law to include in the
       jury verdict form either the degree of the offense of which the
       defendant is convicted or to state that the aggravating element has
       been found by the jury when the verdict incorporates the language of
       the indictment, the evidence overwhelmingly shows the presence of
       the aggravating element, the jury verdict form incorporates the
       indictment and the defendant never raised the inadequacy of the jury
       verdict form at trial. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, at
       ¶ 1.

The majority’s response to this question was yes. Id. The majority held “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.” Id. at ¶ 14; see also State v.

Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180 (holding in Pelfrey is applicable to

charging statutes that contain separate sub-parts with distinct offense levels). The


                                         -5-
Case No. 6-12-02


court further explained that “[t]he express requirement of [R.C. 2945.75] 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.” Id.

       {¶11} Contrary to the majority’s holding, the dissent found Pelfrey’s

argument unavailing in two respects.          First, the dissent disagreed with the

majority’s application of strict compliance, arguing that the standard should be one

of substantial compliance. Id. at ¶ 19 (O’Donnell & Lundberg Stratton, JJ.,

dissenting). Applying this standard, the dissent found that the phrase “as charged

in the indictment” contained within the verdict form substantially complied with

R.C. 2945.75(A)(2), since the indictment referred to government records. Id. at ¶

24.

       {¶12} Second, the dissent argued that even if there was no substantial

compliance, Pelfrey did not preserve the issue for appeal and therefore the issue

was waived absent plain error. Id. at ¶ 31. Under plain error, the dissent found

that there was no question that the jury understood that Pelfrey was accused of

tampering with government records. Id. at ¶ 33. As a result, the dissent concluded




                                        -6-
Case No. 6-12-02


that the error was not plain because even had the trial court complied with R.C.

2945.75(A)(2) the outcome of the trial would not have been different. Id.

       {¶13} Recently, the Supreme Court revisited the effect of not complying

with R.C. 2945.75(A)(2) in State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224.

Eafford was charged, in relevant part, with possession of “cocaine or a compound,

mixture, preparation, or substance containing cocaine in an amount less than 5

grams,” among other counts, in violation of R.C. 2925.11(A). Id. at ¶ 4. The

verdict form for that count stated:

       We, the Jury in this case being duly impaneled and sworn, do find
       the Defendant, Donald Eafford, guilty of Possession of Drugs in
       violation of § 2925.11(A) of the Ohio Revised Code, as charged in
       Count Two of the indictment. (Emphasis deleted.) Id. at ¶ 6.

Subsequently, Eafford was convicted of possession of drugs as a fifth degree

felony. While Eafford did not challenge the verdict form before the trial court, he

did assign error to the verdict form on appeal arguing that it did not comply with

R.C. 2945.75(A)(2), and therefore his conviction should be reduced to the lowest

degree of the offense charged. The Eighth District Court of Appeals agreed,

vacated the sentence, and remanded the matter for resentencing. Subsequently, the

Supreme Court accepted discretionary appeal.

       {¶14} On appeal, the court reversed the court of appeals. In doing so, the

majority recognized that Eafford, having not objected to the verdict form before

the trial court, forfeited all but plain error. Id. at ¶ 11. Under plain error, the

                                        -7-
Case No. 6-12-02


majority, looking at the totality of the record, observed that the indictment, the

evidence presented at trial, and the jury instructions all referred to cocaine. Id. at ¶

17. Given these circumstances, the majority found that the failure to include either

the degree of the offense or a finding that the drug involved was cocaine in the

verdict form did not constitute plain error. Id. at ¶ 18. The majority reasoned that

even if the trial court complied with R.C. 2945.75(A)(2) the outcome of the trial

would not have been different. Id.

       {¶15} Contrary to the majority’s holding, the dissent found that the matter

should have been dismissed as having been improvidently allowed. Id. at ¶ 25

(Lanzinger & Pfeifer, JJ., dissenting). The dissent found that a reversal of the of

the court of appeals’ judgment was a violation of Eafford’s Sixth Amendment

rights. Id. at ¶ 20. Specifically, the dissent argued that “by holding that a verdict

form can be modified by the indictment, the evidence at trial, the argument of

counsel, and the jury instructions, the majority allows a judge to supplant the

language of the jury verdict and the jury’s findings.” Id.

       {¶16} Applying Pelfrey, the dissent found that the court of appeals

properly reversed the trial court’s judgment because the verdict form neither

included the degree of the offense nor a finding concerning the aggravating

element. Id. at ¶ 22, 25. In so finding, the dissent noted that “[t]his situation could

have been avoided by the prosecutor’s careful review of the verdict form before it


                                          -8-
Case No. 6-12-02


was submitted to the jury[,]” thus placing the burden on the state to ensure the

verdict form complies with R.C. 2945.75(A)(2). Id. at ¶ 25.

       {¶17} Though the majority in Eafford does not mention Pelfrey, it appears

that its decision conflicts with the holding in Pelfrey. In both cases, the defendants

did not object to the verdict forms before the trial court. In Pelfrey, the court,

conscious of the defendant’s failure to object to the verdict forms before the trial

court, stated that the requirement of R.C. 2945.75(A)(2) “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.”    Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, at ¶ 14.

Conversely, in Eafford, the court determined that the additional circumstances

enumerated in Pelfrey can save a conviction from being reduced to the lowest

degree of the offense charged even when the verdict form does not include either

the degree of the offense or a finding concerning the aggravating element.

Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, at ¶ 17-18.

       {¶18} Although the court’s decisions in Pelfrey and Eafford apparently

contradict each other, the Eafford Court did not expressly overrule Pelfrey.

Indeed, Eafford contains no reference to its effect on Pelfrey. In light of Eafford’s


                                         -9-
Case No. 6-12-02


silence and our strict interpretation of R.C. 2945.75(A)(2) as required by R.C.

2901.04(A) and Pelfrey, we find that Pelfrey controls the disposition of this

matter. See, e.g., State v. Schwable, 3d Dist. No. 7-09-03, 2009-Ohio-6523.

           {¶19} Here, Gregory was charged with domestic violence in violation of

R.C. 2919.25(A), (D)(4), a felony of the third degree. For a domestic violence

offense to constitute a third degree felony, the jury must make the additional

finding that the defendant “previously has pleaded guilty to or been convicted of

two or more offenses of domestic violence[.]” R.C. 2919.25(D)(4). Without this

finding, the defendant’s domestic violence offense constitutes a first degree

misdemeanor. R.C. 2919.25(D)(2).

           {¶20} At trial, Gregory stipulated that he has two prior convictions of

domestic violence, and copies of those convictions were admitted into evidence.

After the parties’ closing arguments, the trial court instructed the jury, in relevant

part, as follows:

           Before you can find the Defendant guilty, you must find beyond a
           reasonable doubt that on or about August 13th, 2011, and in Hardin
           County, Ohio, the Defendant knowingly caused or attempted to
           cause physical harm to a family or household member, and further
           you must find Defendant has pleaded guilty to or has been convicted
           of two or more offenses of domestic violence involving a person
           who was a family or household member at the time of the violations
           or offenses.1 Trial Tr., p. 156.




1
    This language also appears in the typewritten jury instructions provided to the jury during deliberations.

                                                      -10-
Case No. 6-12-02


         {¶21} Although Gregory stipulated that he had two prior convictions for

domestic violence and the jury instructions specified the correct offense and

degree, these facts, under Pelfrey, do not excuse the failure to comply with R.C.

2945.75(A)(2).2         Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, at ¶ 13. The

verdict form here reads:

         We, the Jury in this case find the Defendant, Trace Elliot Gregory,
         guilty of the offense of Domestic Violence. (Docket No. 25).3

Clearly, the verdict form does not include either the degree of the offense (i.e., a

third degree felony) or the aggravating element (i.e., two prior domestic violence

convictions), as required by R.C. 2945.75(A)(2). Under Pelfrey, the verdict form

is insufficient to convict Gregory of a third degree felony. Accordingly, we find

the failure to comply with R.C. 2945.75(A)(2) results in plain error.

         {¶22} The State, however, contends that the verdict form does comply with

R.C. 2945.75(A)(2), and thus does not offend the holding in Pelfrey. The State

relies on State v. Sessler, 3d Dist. No. 3-06-23, 2007-Ohio-4931, and Schwable, 3d
2
  We note that when parties to an action are able to reach a stipulation on an essential element of an offense
that stipulation does not have the effect of withdrawing the issue from the jury’s consideration, and
therefore a finding on the stipulated fact is still necessary. State v. Cisternino, 11th Dist. No. 99-L-137
(Mar. 30, 2001), citing State v. Fatica, 11th Dist. No. 93-G-1799 (Oct. 15, 1999); see also State v.
Williams, 10th Dist. No. 10AP-1042, 2011-Ohio-4595 (despite the defendant’s stipulation that he stole a
credit card from the victim, a fact which elevated his conviction for receiving stolen property from a first
degree misdemeanor to a fifth degree felony, the court of appeals found that the defendant must be
convicted of the least degree of the offense because the verdict form did not include either the degree of the
offense or finding that the stolen property was a credit card). Furthermore, it has been this author’s
position that before a trial court accepts a defendant’s stipulation to an element of an offense it should
engage in a Crim.R. 11 colloquy to determine whether the defendant knowingly, intelligently, and
voluntarily entered the stipulation. State v. McCullough, 3d Dist. No. 12-07-09, 2008-Ohio-3055, ¶ 44-58
(Rogers, J., concurring in part and dissenting in part).
3
  We further note that unlike the verdict forms in Pelfrey and Eafford, the verdict form in this matter did not
refer to the indictment.

                                                    -11-
Case No. 6-12-02


Dist. No. 7-09-03, 2009-Ohio-6523, to suggest that R.C. 2945.75(A)(2) can be

satisfied if the verdict form includes the statutory section under which the

defendant was charged. Under this interpretation, the State maintains that the

verdict form complies with R.C. 2945.75(A)(2) because its caption contains the

statutory section under which Gregory was charged, R.C. 2919.25(A), (D)(4). We

disagree.

       {¶23} In both Sessler and Schwable, this court determined that the verdict

forms at issue did not comply with R.C. 2945.75(A)(2). In doing so, this court

observed that the verdict forms did not include either the degree of the offense, a

finding concerning the aggravating element, or the statutory section of the charged

offense. Sessler at ¶ 13; Schwable at ¶ 16.

       {¶24} Contrary to the State’s interpretation, we find that our holdings in

Sessler and Schwable do not stand for the proposition that R.C. 2945.75(A)(2) can

be satisfied if the verdict form includes the statutory section under which the

defendant was charged. Those holdings were premised on the Supreme Court’s

decision in Pelfrey, which held that R.C. 2945.75(A)(2) can only be satisfied

where the verdict form includes either the degree of the offense or a finding

concerning the aggravating element. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,

at ¶ 14. Nowhere in Pelfrey, did the court hold that the requirement of R.C.

2945.75(A)(2) could be satisfied by including the statutory section of the offense


                                       -12-
Case No. 6-12-02


charged.      In fact, the court implicitly held otherwise.                   Id.    (“The express

requirement of [R.C. 2945.75(A)(2)] cannot be fulfilled by demonstrating

additional circumstances[.]”). Consequently, Sessler and Schwable cannot be read

to expand the means by which a verdict form can comply with R.C.

2945.75(A)(2). Therefore, we find that the inclusion of the statutory number

under which Gregory was charged in the verdict form’s caption does not satisfy

the requirement of R.C. 2945.75(A)(2).4

        {¶25} Having found the State’s argument unavailing, and having found the

verdict form insufficient to convict Gregory of a third degree felony, we must

reverse Gregory’s conviction of domestic violence as a third degree felony and

remand the matter for the trial court to enter a judgment convicting Gregory of

domestic violence as a first degree misdemeanor.

        {¶26} Accordingly, we sustain Gregory’s first assignment or error.

                                   Assignment of Error No. II

        {¶27} In his second assignment of error, Gregory contends that the trial

court erred when it informed him that he was subject to three years of optional

post-release control. Given our disposition of Gregory’s first assignment of error,

Gregory’s second assignment of error is moot and we decline to address it.

App.R. 12(A)(1)(c).

4
 Our decision today should not be read as overruling our decisions in Sessler and Schwable. Instead, our
decision should be read as clarifying our decisions in Sessler and Schwable, so they are harmonized with
Pelfrey’s holding.

                                                 -13-
Case No. 6-12-02


       {¶28} Having found error prejudicial to Gregory herein, in the particulars

assigned and argued in his first assignment of error, we reverse Gregory’s

conviction of domestic violence as a third degree felony and remand the matter for

the trial court to enter a judgment convicting Gregory of domestic violence as a

first degree misdemeanor, pursuant to R.C. 2919.25(A), (D)(2).

                                                          Judgment Reversed and
                                                               Cause Remanded

WILLAMOWSKI, J., Concurs Separately.

       {¶28} I find that R.C. 2945.75(A)(2) is clear and unambiguous. The statute

was objectively not followed. The clear and unambiguous statute provides for

what happens when it is not followed. I therefore concur with the majority.



SHAW, J., DISSENTS.

       {¶29} I respectfully dissent from the majority opinion. Plain error requires

that “but for the error, the outcome of the trial would clearly have been

otherwise.” (Emphasis added). State v. Biros, 78 Ohio St.3d 426, 431 (1997).

Pursuant to the directives of the Ohio Supreme Court’s recent holding in State v.

Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, the circumstances of this case do

not create a “manifest miscarriage of justice” as is required for us to reverse the

trial court’s holding under a plain error standard.



                                         -14-
Case No. 6-12-02


       {¶30} In this case, Gregory was indicted for a violation of R.C. 2919.25(A),

(D)(4), and the indictment’s language reflected that he had to be found to have

committed two or more offenses of domestic violence in the past. Revised Code

2919.25(A), (D)(4) is cited in the caption of the jury verdict form. At trial, the

parties stipulated to two prior offenses of domestic violence, and judgment entries

reflecting those convictions and that stipulation were provided to the jury.

       {¶31} In addition, both oral and written closing instructions were presented

to the jury informing the jury that before it could find Gregory guilty of the offense

charged, the jury had to find that Gregory committed two prior domestic violence

offenses. Throughout all of the proceedings, there is no indication that the jury was

anything but completely informed that it was required to find prior convictions of

domestic violence before finding Gregory guilty of the sole domestic violence

charge in the indictment.

       {¶32} In Eafford, the Ohio Supreme Court conducted the following

analysis:

       Count Two of the indictment alleged that Eafford possessed
       cocaine, expert testimony confirmed that the substance at issue
       tested positive for cocaine, and throughout the trial the parties
       and the court treated the phrase “possession of drugs” as
       synonymous with possession of cocaine. Further in its jury
       instructions—a copy of which the court submitted to jurors who
       had it in the deliberating room during deliberations—the trial
       court explained to the jury that it could not find Eafford guilty
       of possession of drugs as charged in Count Two unless it found
       the drug involved to be cocaine or a compound, mixture,

                                        -15-
Case No. 6-12-02


      preparation, or substance containing cocaine. And, as we
      observed in State v. Johnson, 71 Ohio St.3d 332, 340, 643 N.E.2d
      1098 (1994), “[j]uries are presumed to follow the court’s
      instructions.” Thus, when the jury found Eafford guilty as
      charged in Count Two of the indictment, its finding necessarily
      related to possession of cocaine.

      Eafford therefore failed to demonstrate that the trial court
      committed plain error in these circumstances. The verdict form
      used the phrase “possession of drugs” but did not ask jurors to
      specify whether the drug involved in this case was or was not
      cocaine. The jurors found Eafford “guilty of Possession of
      Drugs in violation of §2925.11(A) of the Ohio Revised Code, as
      charged in Count Two of the indictment.” The finding in the
      verdict cannot be described as error, let alone an obvious defect
      in the trial proceedings, and it did not affect Eafford’s
      substantial rights. He knew from the outset that the state
      intended to prove his guilt of possession of cocaine. And it did.
      The form of the jury verdict did not affect the outcome of the
      trial. The state intended to prove the accused guilty of
      possession of cocaine, it did so, and the jury in accordance with
      its findings rendered a verdict in conformity with the evidence
      presented by the state that Eafford possessed cocaine.

(Emphasis sic). Eafford, at ¶ 17-18. Following this analysis, the Ohio Supreme

Court came to this conclusion:

      Count Two of the indictment charged Eafford with possession of
      cocaine, the state provided testimony that he possessed cocaine,
      and the jury returned its verdict on the only verdict form the
      court submitted to it. That verdict form reflected a finding of
      guilty as charged in Count Two of the indictment, referring to
      possession of cocaine. Thus, Eafford has not shown that but for
      the use of this verdict form, the outcome of the trial would have
      been different. Had he made a timely objection, the court could
      have modified the verdict form, but Eafford still would have
      been found guilty of possession of cocaine, because the only
      evidence in the case demonstrated his possession of cocaine, as
      he did not offer any defense in this case. Accordingly, we reverse

                                     -16-
Case No. 6-12-02


       the judgment of the court of appeals and reinstate the sentence
       imposed by the trial court.

(Emphasis sic). Eafford, at ¶ 19.

       {¶33} Clearly, Eafford directs us to look specifically at all of the

circumstances of the trial and all of the information that was presented to the jury.

The fact that the verdict form in the case before us did not contain the phrase "as

charged in the indictment" does not diminish the significance of the remaining

factors cited in Eafford, identically present in this case, beyond the mere use of

that one phrase. In no event would the outcome of the case before us have been

altered by any amount of speculation concerning this jury verdict form. There

simply is no other rational construction of the verdict given the evidence and

instructions in this case.

       {¶34} Inexplicably, the majority chooses to disregard the "totality of the

circumstances" analysis and the holding in Eafford on the basis that the Ohio

Supreme Court’s decision in State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,

was not expressly overruled in Eafford. In addition, based upon nothing more

than an apparent personal preference for the Pelfrey decision, the majority then

declares that it will not follow Eafford and will continue to apply only the Pelfrey

analysis in these cases. I am aware of no legal basis for an intermediate court of

appeals taking such a position with regard to the most recent decision of the Ohio



                                        -17-
Case No. 6-12-02


Supreme Court on any issue and I will not join the majority panel members on this

path.

        {¶35} Consequently, in the case before us, employing the methods of

Eafford, I would look first to the indictment, which reads as follows:

        COUNT 1

        [T]he defendant, TRACE ELLIOT GREGGORY, * * *: on or
        about August 13, 2011, in Hardin County, Ohio, did knowingly
        cause or attempt to cause physical harm to a family or
        household member, and further, said Trace E. Gregory has
        pleaded guilty to or has been convicted of two or more offenses
        of Domestic Violence or two or more violations or offenses of the
        type described in Ohio Revised Code §2919.25(D)(3) involving a
        person who was a family or household member at the time of the
        violations or offenses; in violation of Ohio Revised Code
        §2919.25(A), (D)(4), Domestic Violence [F3], a felony of the third
        degree.

(Doc. 2).

        {¶36} Next, I would note that the parties entered into a stipulation prior to

the trial regarding the prior domestic violence offenses. The stipulation reads as

follows:

        The parties hereby stipulate that Trace E. Gregory has two prior
        convictions of Domestic Violence. The first conviction for
        Domestic Violence being an [F4], a felony of the fourth degree, in
        violation of Ohio Revised Code §2919.25, filed March 11, 1194 in
        Clark County Common Pleas Court Case No. 94-CR0116; and a
        second conviction of Domestic Violence, [F5] a felony of the fifth
        degree, in violation of Ohio Revised Code §2919.25 filed April 4,
        2001, in Logan County Common Pleas Court Case No. CR00-10-
        0172. There is no need for testimony from the Clerk of Courts
        or other witness. Therefore, the parties stipulate that a file

                                        -18-
Case No. 6-12-02


       stamped copy of this Entry may be used and/or admitted by the
       parties consistent with the rules of evidence and the rulings of
       this Court without the need for identification, authentication or
       other foundation testimony.

(Doc. 24). At the trial, judgment entries reflecting the prior convictions were, in

fact, introduced into evidence for the jury to consider in making its decision. No

evidence rebutting the prior convictions was presented by the defense.

       {¶37} After the State presented its case, the defense called no witnesses.

The court then proceeded to turn the case over to the jury, giving the jury its

closing instructions. As part of the closing instructions, the court stated:

       I will now read the indictment to you. State of Ohio, Hardin
       County, Court of Common Pleas, in the August 25th, 26th, 2011
       session, the jurors of the Grand Jury of the State of Ohio within
       and for the body of the county aforesaid on their oaths, in the
       name and by the authority of the State of Ohio, do find and
       present that count one, there’s only one count, the Defendant,
       Trace Elliott Gregory, in Hardin County, Ohio, did knowingly
       cause or attempt to cause physical harm to a family or
       household member, and further, that said Trace E. Gregory has
       pleaded guilty to or has been convicted of two or more offenses
       of domestic violence involving a person who was a family or
       household member at the time of the violations. Domestic
       violence, in violation of Ohio Revised Code Section 2919.25(A),
       (D)(4). Now what does that all mean?

       ***

       Before you can find the Defendant guilty, you must find beyond a
       reasonable doubt that on or about August 13th, 2011, and in
       Hardin County, Ohio, the Defendant knowingly caused or
       attempted to cause physical harm to a family or household
       member, and further you must find Defendant has pleaded guilty
       to or has been convicted of two or more offenses of domestic

                                         -19-
Case No. 6-12-02


       violence involving a person who was a family or household
       member at the time of the violations or offenses.

(Emphasis added). (Tr. at 155-56).

       {¶38} The court’s oral closing instructions were accompanied by written

closing instructions reflecting the same information. The written instructions read:

       The Defendant is charged in count one of the indictment with
       domestic violence. Before you can find the Defendant guilty, you
       must find beyond a reasonable doubt that on or about August
       13th, 2011, and in Hardin County, Ohio, the Defendant
       knowingly caused or attempted to cause physical harm to a
       family or household member, and further you must find
       Defendant has pleaded guilty to or has been convicted of two or
       more offenses of domestic violence involving a person who was a
       family or household member at the time of the violations or
       offenses.

(Emphasis added.)

       {¶39} Based on these oral and written instructions, the jury was duly

notified that before it found Gregory guilty, it had to find that he had been

convicted twice previously of domestic violence.

       {¶40} The jury verdict form is captioned: “Offense: Domestic Violence in

violation of Ohio Revised Code Section 2919.25(A), (D)(4).” (Doc. 25). The

statute referenced in the verdict form points to domestic violence as a felony of the

third degree (as Gregory was charged), requiring two previous convictions. The

text in the body of the verdict form reads, “We, the Jury in this case find the




                                        -20-
Case No. 6-12-02


Defendant, Trace Eliot Gregory, Guilty5 of the offense of Domestic Violence.

(Doc. 25).

           {¶41} As pointed out by the majority, the verdict form does not include the

language “as charged in the indictment.” Nevertheless, based upon all of this

information, I fail to see how we could find that plain error existed. There is no

indication that had the verdict form read any differently that the outcome would

not have been the same at Gregory’s trial. In fact, Gregory presented no evidence

to rebut the prior convictions, which were stipulated to by the defense. Thus the

only evidence at all in the record reflects that Gregory did have two prior

convictions. This is identical to Eafford where the only evidence presented was

that the substance was, in fact, cocaine. In Eafford the Ohio Supreme Court

directs us to find that plain error does not exist in such circumstances.

Accordingly, pursuant to Eafford, and the facts and circumstances of this case, I

would affirm the jury verdict and judgment of conviction entered in the trial court.

/jlr




5
    The word guilty is hand-written.

                                           -21-
