[Cite as State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042.]




        THE STATE OF OHIO, APPELLEE, v. MCDONALD, APPELLANT.
       [Cite as State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042.]
Criminal procedure—R.C. 2945.75—Requirements for verdicts indicating
        enhanced degree of offense—R.C. 2921.331.
  (No. 2012-1177—Submitted March 13, 2013—Decided November 20, 2013.)
      CERTIFIED by the Court of Appeals for Lawrence County, No. 11CA1,
                                     2012-Ohio-1528.
                                  ____________________
        PFEIFER, J.
        {¶ 1} In this case, which involves a felony enhancement for failure to
comply with       the    signal    or   order   of   a   police    officer   under   R.C.
2921.331(C)(5)(a)(ii), we consider whether a jury’s verdict complies with the
requirements of R.C. 2945.75. Specifically, we consider whether a jury verdict
that includes a finding of “substantial risk of serious physical harm to persons or
property,” the enhancement element of R.C. 2921.331(C)(5)(a)(ii), is sufficient to
sustain a third-degree-felony conviction for a violation of R.C. 2921.331(B) when
the verdict fails to set forth the degree of the offense and also fails to refer to or
include language from R.C. 2921.331(B). Pursuant to R.C. 2945.75, we find that
such a verdict supports only a misdemeanor conviction.
                         Factual and Procedural Background
        {¶ 2} On September 30, 2010, Coal Grove Police Department officer
Gleo Runyon observed appellant, Scotty R. McDonald, driving a motor vehicle at
a high rate of speed on U.S. Route 52. It was 3:00 a.m. McDonald was headed
west toward Ironton and, by Runyon’s radar, was traveling at 112 miles per hour.
Officer Runyon activated his lights and began to pursue McDonald. McDonald
exited Route 52 at Marion Pike—about a mile down the road from where Runyon
                             SUPREME COURT OF OHIO




first saw him—and headed toward Ironton. Runyon testified that during the
pursuit, McDonald traveled at a high rate of speed through the town of Ironton, at
times in excess of 80 miles per hour, running through stoplights and stop signs.
McDonald passed at least one establishment that had people gathered outside.
McDonald eventually came to a stop and was arrested and transported to the
Ironton Police Department. He was given a breath test that indicated a breath-
alcohol level of over twice the legal limit.
       {¶ 3} The grand jury indicted McDonald on a single, third-degree-felony
count of failure to comply with an order or signal of a police officer, in violation
of R.C. 2921.331(B) and (C)(5)(a)(ii). The indictment read:


               Scotty R. McDonald, on or about September 30, 2010, at
       Lawrence County, Ohio, did operate a motor vehicle * * * so as to
       willfully elude or flee a police officer after receiving a visible or
       audible signal from a police officer to bring his motor vehicle to a
       stop, and the operation of the motor vehicle caused substantial risk
       of serious physical harm to persons or property, in violation of
       Section 2921.331(B)(C)(5)(a)(ii) [“(B)(C)” sic] of the Revised
       Code.


                                   R.C. 2921.331
       {¶ 4} R.C. 2921.331 sets forth a range of violations of varying degrees
for failure to comply with the order or signal of a police officer, spanning in
severity from first-degree misdemeanors to third-degree felonies. The statute
provides:




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               (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.


       {¶ 5} R.C. 2921.331(C)(1) names two separate activities—defined in
subsections (A) and (B) of the statute—as “failure to comply with an order or
signal of a police officer.” But R.C. 2921.331(A) and (B) describe separate
violations; R.C. 2921.331(A) prohibits the failure to comply with any lawful order
of a police officer, whereas R.C. 2921.331(B) prohibits willfully fleeing or



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eluding a police officer after receiving a signal to stop.        Although both are
denominated by R.C. 2921.331(C) as “failure to comply with an order or a signal
of a police officer,” the potential penalties for each are significantly different.
Under R.C. 2921.331(C)(2), a violation of subsection R.C. 2921.331(A)
constitutes a misdemeanor. Under R.C. 2921.331(C)(3), a violation of subsection
R.C. 2921.331(B) also constitutes a misdemeanor except under certain
circumstances;     for   instance,   as   relevant   in   this   case,   under   R.C.
2921.331(C)(5)(a)(ii), a violation of R.C. 2921.331(B) is a felony of the third
degree if the operation of the motor vehicle caused a substantial risk of serious
harm to persons or property.
                              Verdict Form and Verdict
          {¶ 6} McDonald was tried in the Lawrence County Court of Common
Pleas. The jury was presented with two verdict forms, one of which read:


                 We, the jury, find the Defendant, Scotty R. McDonald,
          (Guilty or Not Guilty) of Count One: Failure to Comply with
          Order or Signal of Police Officer And Caused A Substantial Risk
          of Serious Physical Harm To Persons or Property.


          {¶ 7} A second verdict form submitted to the jury also referred to the
offense of failure to comply with the order or signal of a police officer, but
without the element of “substantial risk of serious physical harm to persons or
property.”
          {¶ 8} The jury returned the first verdict form with a guilty finding. The
court, concluding that the jury had convicted McDonald of a felony for violating
R.C. 2921.331(B) and 2921.331(C)(5)(a)(ii), sentenced McDonald to four years in
prison.




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                                       Appeal
       {¶ 9} McDonald appealed, arguing that pursuant to R.C. 2945.75, the
verdict form at trial was deficient because it failed either to set out the degree of
the offense or to list all the aggravating circumstances that elevated from a
misdemeanor to a felony the crime of failure to comply with an order or signal of
a police officer. 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.


       {¶ 10} McDonald argued that the verdict form the jury signed failed to
state that he had “willfully * * * elude[d] or fle[d] a police officer after receiving
a visible or audible signal from a police officer to bring [his] motor vehicle to a
stop” as set forth in R.C. 2921.331(B). McDonald argued that only a violation of
R.C. 2921.331(B) provides the necessary predicate for a felony punishment
pursuant to R.C. 2921.331(C)(5)(a)(ii) and that the verdict form failed to include
the jury’s finding on the elements of R.C. 2921.331(B).
       {¶ 11} The court of appeals affirmed the trial court. The court held:


       [I]t is not the element of “willfully” fleeing or eluding that elevates
       the crime from a first degree misdemeanor to a third degree felony
       but, rather, the fact that the defendant is causing a substantial risk



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       of physical harm to person/property. Because that language from
       the statute was included in the jury verdict, we conclude that the
       verdict complied with R.C. 2945.75 and [State v.] Pelfrey [112
       Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735].


2012-Ohio-1528, 2012 WL 1142677, ¶ 9.
       {¶ 12} The appellate court recognized that its opinion was directly at odds
with that of the Third District Court of Appeals in a case with similar facts, State
v. Schwable, 3d Dist. Henry No. 7-09-03, 2009-Ohio-6523, 2009 WL 4756435,
and certified a conflict to this court. This court agreed that a conflict exists and
ordered briefing on the following issue:


               Is the inclusion of the “substantial risk of serious physical
       harm     to   persons     or   property”     language     from     R.C.
       2921.331(C)(5)(a)(ii) sufficient to sustain a third-degree-felony
       conviction for a violation of R.C. 2921.331(B) when the verdict
       fails to set forth the degree of the offense and also fails to reference
       or include language from R.C. 2921.331(B)?


132 Ohio St.3d 1512, 2012-Ohio-4021, 974 N.E.2d 111.
                                 Law and Analysis
       {¶ 13} In Pelfrey, this court addressed the specificity that R.C. 2945.75
requires in verdict forms in cases in which the degree of an offense becomes more
serious with the presence of additional elements. The court held:


       [P]ursuant 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




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       element has been found to justify convicting a defendant of a
       greater degree of a criminal offense.


Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at ¶ 14.
       {¶ 14} This court called R.C. 2945.75 “a clear and complete statute” that
“certainly imposes no unreasonable burden on lawyers or trial judges.” Id. at
¶ 12. Its dictates are simple, and the resolution of cases that do not meet its
requirements is also straightforward: “The statute provides explicitly what must
be done by the courts [when R.C. 2945.75(A)(1) is not followed]: the ‘guilty
verdict constitutes a finding of guilty of the least degree of the offense charged.’
R.C. 2945.75(A)(2).” Id. at ¶ 13.
       {¶ 15} In Pelfrey, the defendant was an employee of an auto-emissions-
testing company that had a contract with the state of Ohio. Pelfrey was allegedly
involved in a scheme in which, for cash, he would provide fraudulent waivers for
vehicles that had actually failed an emissions test.       He was charged with
tampering with records, in violation of R.C. 2913.42; that statute provides for an
enhanced charge of a third-degree felony when the tampering involves
government records. R.C. 2913.42(B)(4). A jury found Pelfrey guilty, and he
was sentenced to four years in prison on the third-degree-felony conviction.
       {¶ 16} However, the verdict form signed by Pelfrey’s jury failed to set
forth either the degree of the offense he was convicted of or that the records
involved were government records. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,
860 N.E.2d 735, ¶ 13.      Since the fact that the records tampered with were
government records elevated the crime from a misdemeanor under R.C.
2913.42(B)(2)(a) to a third-degree felony under R.C. 2913.42(B)(4), the failure of
the verdict form to mention that crucial element—or that Pelfrey was found guilty
of a third-degree felony—meant that, pursuant to R.C. 2945.75(A)(2), Pelfrey




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could be convicted only of misdemeanor records tampering on the jury’s finding
of guilt.
        {¶ 17} Pelfrey makes clear that in cases involving offenses for which the
addition of an element or elements can elevate the offense to a more serious
degree, the verdict form itself is the only relevant thing to consider in determining
whether the dictates of R.C. 2945.75 have been followed.


               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 [a] conviction based on additional circumstances * * *. 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 at ¶ 14.
        {¶ 18} Thus, in this case, which involves a criminal statute in which the
addition of certain elements enhances the crime of failure to comply with the
order or signal of a police officer, we look only to the verdict form signed by the




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jury to determine whether, pursuant to R.C. 2945.75, McDonald was properly
convicted of a third-degree felony.
        {¶ 19} To properly convict McDonald of a violation of R.C. 2921.331(B)
as enhanced by R.C. 2921.331(C)(5)(a)(ii), the verdict would have to either state
that McDonald was guilty of a third-degree felony or set forth the additional
elements that transform the failure to comply with the order or signal of a police
officer from a misdemeanor to a third-degree felony. There is no dispute that the
verdict at issue failed to state that McDonald was guilty of a third-degree felony.
The dispute in this case is whether the verdict sufficiently set forth the elements
that led to a felony conviction. We hold that the verdict in this case was deficient
in that regard.
        {¶ 20} The verdict form stated that the jury found McDonald guilty of
“Failure to Comply with Order or Signal of Police Officer And Caused A
Substantial Risk of Serious Physical Harm To Persons or Property.” As stated
above, “failure to comply with an order or signal of a police officer” is the name
of a violation of either R.C. 2921.331(A)—a general failure to comply with the
order of a police officer—or R.C. 2921.331(B)—willful flight in a motor vehicle
from a police officer. Only a violation of R.C. 2921.331(B) can be the basis of an
enhancement under R.C. 2921.331(C)(5)(a)(ii) for creating a substantial risk of
injury or damage to property.
        {¶ 21} A violation of R.C. 2921.331(B) can also serve as the predicate for
a fourth-degree felony under R.C. 2921.331(C)(4) if the offender was fleeing
from an officer immediately after the commission of a felony, or for a third-
degree felony under R.C. 2921.331(C)(5)(a)(i) if the operation of the vehicle “was
a proximate cause of serious physical harm to persons or property.” And it makes
sense that a violation of R.C. 2921.331(B) should be the gateway to more serious
vehicular offenses, since in comparison to R.C. 2921.331(A), it involves more
significant criminal activity. R.C. 2921.331(A) can apply to an offender who is



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not even in an automobile and who simply ignores an officer’s traffic signal. R.C.
2921.331(B), on the other hand, requires the operation of a motor vehicle and the
willful eluding or fleeing from a police officer after receiving a visible or audible
signal to stop, a purposeful flouting of a police officer’s signal and an attempt to
escape.
          {¶ 22} The only path to a felony conviction for failure to comply with the
order or signal of a police officer is through R.C. 2921.331(B). If only one type
of failure to comply can lead to a felony, the particular elements of that type of
failure to comply constitute one part of R.C. 2945.75’s “one or more additional
elements [that] make[ ] an offense one of more serious degree.” The first element
of a felony charge under R.C. 2921.331 is that the failure to comply involved
willful elusion or flight from a police officer. Without that element, there can be
no felony.
          {¶ 23} The verdict form in this case does not indicate that the elements of
R.C. 2921.331(B) are implicated. Therefore, the verdict form the jury signed
does not set forth the additional elements that enhance the crime of failure to
comply from a misdemeanor to a felony; it therefore supports only a misdemeanor
conviction.
          {¶ 24} If the jury had believed that McDonald had simply failed to
comply with the order of Officer Runyon but did not see or hear the signal or
intentionally flee him, but in failing to comply managed to create a substantial
risk to injury to persons or property, the very verdict form used in this case would
have fit that conclusion. And that conclusion would have yielded a misdemeanor,
because it would have reflected only a violation of R.C. 2921.331(A). That
verdict form and a verdict form supporting a felony cannot be identical; a felony
verdict form—if it does not state the degree of the offense—must state the
elements that distinguish it from a misdemeanor offense.




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       {¶ 25} The jury found that McDonald was guilty of failure to comply with
the order or signal of a police officer. Its further finding that McDonald had
caused a substantial risk of serious physical harm to persons or property was
superfluous without a finding that the risk occurred when McDonald was in
willful flight from a police officer. Thus, pursuant to R.C. 2945.75(A)(2), the
verdict form in this case yields a guilty verdict that “constitutes a finding of guilty
of the least degree of the offense charged,” that is, a first-degree misdemeanor
pursuant to R.C. 2921.331(C)(3).
       {¶ 26} Accordingly, we reverse the judgment of the court of appeals and
remand the cause for the trial court to enter a judgment convicting McDonald of
failure to comply with the order or signal of a police officer as a first-degree
misdemeanor.
                                                                   Judgment reversed
                                                                and cause remanded.
       O’CONNOR, C.J., and LANZINGER, KENNEDY, and O’NEILL, JJ., concur.
       O’DONNELL, J., dissents and would affirm the judgment of the court of
appeals and answer the certified-conflict question in the affirmative.
       FRENCH, J., dissents.
                               ____________________
       LANZINGER, J., concurring.
       {¶ 27} It is misleading for the dissent to suggest that there is now a
requirement for a verdict form to recite each and every element of the offense
charged.
       {¶ 28} The jury verdict in this case was inartfully worded, finding
McDonald guilty of “Failure to Comply with Order or Signal of Police Officer
And Caused A Substantial Risk of Serious Physical Harm To Persons or
Property.” It is true that the court’s instructions at trial would have defined the
elements of the offense for the jury. R.C. 2945.11 (“In charging the jury, the court



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must state to it all matters of law necessary for the information of the jury in
giving its verdict”). But the jury itself determines the facts. The United States
Supreme Court has clearly held that a court may not usurp the fact-finding of a
jury through judicial findings. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348, 147 L.Ed.2d 435 (2000); Blakely v. Washington, 542 U.S. 296, 124 S.Ct.
2531, 159 L.Ed.2d 403 (2004). We have also acknowledged that principle. State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. And as the majority
opinion notes in this case, the jury verdict, as it is stated, fits a conclusion that
would support only a misdemeanor violation under R.C. 2921.331(A).
       {¶ 29} The majority holds simply that the jury’s verdict must identify
specifically the offense of which the defendant is found guilty: a reference to R.C.
2921.331(B) and (C)(5)(a)(ii) would have been sufficient, as would a reference to
the degree of the offense as a felony of the third degree. This is a simple
application of State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d
735, syllabus. I respectfully concur.
                             ____________________
       FRENCH, J., dissenting.
       {¶ 30} The majority erases the jury’s guilty verdict for one reason: the
verdict did not recite each and every element of the offense charged. Because
there is no such requirement, and certainly none in R.C. 2945.75(A)(2), I
respectfully dissent.
       {¶ 31} At the outset, there is no constitutional or statutory right to a guilty
verdict reciting every element of an offense. To the contrary, criminal law has
long disfavored the practice of supplementing general verdicts with special
verdicts, special interrogatories, or special findings. “Juries at the time of the
framing could not be forced to produce mere ‘factual findings,’ but were entitled
to deliver a general verdict pronouncing the defendant’s guilt or innocence.”
United States v. Gaudin, 515 U.S. 506, 513, 115 S.Ct. 2310, 132 L.Ed.2d 444




                                         12
                                January Term, 2013




(1995). The practice of requiring more than a general verdict is relatively new
and fraught with risks. Special findings can “limit jury independence,” 6 LaFave,
Criminal Procedure, Section 24.10(a), at 714 (3d Ed.2007), “invite[] confusion
and error,” State v. Lampkin, 116 Ohio App.3d 771, 774, 689 N.E.2d 106 (6th
Dist.1996), fn. 1, and pose a “danger of * * * shifting or weakening * * * the
government’s burden of proof,” United States v. Wilson, 629 F.2d 439, 442 (6th
Cir.1980). The jury instructions are what define the elements of an offense, see
R.C. 2945.11, but there is simply “no requirement that the statutory definition of
an offense be included on the verdict form.”            State v. Martin, 2d Dist.
Montgomery No. 22744, 2009-Ohio-5303, ¶ 8.
       {¶ 32} R.C. 2945.75 contains a narrow exception to the preference for
general verdicts, one that applies only “[w]hen the presence of one or more
additional elements makes an offense one of more serious degree.”               R.C.
2945.75(A). If such an additional degree-raising element is involved, the jury’s
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.” R.C.
2945.75(A)(2). Because the guilty verdict in this case did not state the degree of
the offense, the question is whether the verdict sufficiently stated that the
additional elements making the offense a third-degree felony were present.
       {¶ 33} At issue here is the failure-to-comply statute, R.C. 2921.331,
which identifies two base-level offenses: a division (A) violation—i.e., “fail[ure]
to comply with any lawful order or direction of any police officer”—and a
division (B) violation—i.e., “operat[ing] 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.” Both violations are first-
degree misdemeanors, but a division (B) violation will rise to a third-degree
felony if the jury finds that “[t]he operation of the motor vehicle by the offender
caused a substantial risk of serious physical harm to persons or property.” R.C.



                                         13
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2921.331(C)(5)(a)(ii).      Therefore, the “substantial risk” element in R.C.
2921.331(C)(5)(a)(ii) is an additional element that raises a division (B) violation
to a third-degree felony.
          {¶ 34} Here, the single-count indictment alleged only a division (B)
violation, including the degree-raising “substantial risk” element in R.C.
2921.331(C)(5)(a)(ii). The trial court instructed the jury on the elements of a
division (B) violation and the degree-raising “substantial risk” element. The jury
returned a guilty verdict, which included a finding that McDonald “Caused A
Substantial Risk of Serious Physical Harm To Persons or Property.” Because the
only degree-raising element was the “substantial risk” element in R.C.
2921.331(C)(5)(a)(ii), and because the jury’s guilty verdict explicitly found that
element, I conclude that the jury’s verdict was sufficient to support a third-degree
felony.
          {¶ 35} According to the majority, however, the jury’s verdict violated
R.C. 2945.75(A)(2) because it did not recite every element of a division (B)
violation. But division (B) does not identify any “additional element” of the
offense, nor does it identify elements that raise the degree of the offense. The
only other base-level offense identified in the statute is a violation of division (A),
which the majority concedes is a “separate violation[].” Majority opinion at ¶ 5.
The elements that distinguish division (B) from division (A) are not degree-
raising elements.      By holding otherwise, the majority has relied on an
unprecedented interpretation of R.C. 2945.75(A)(2), one that will apply to any
statute that identifies two or more alternative forms of an offense.
          {¶ 36} The majority finds an R.C. 2945.75(A)(2) violation where I find
none. I would answer the certified-conflict question in the affirmative and affirm
the judgment of the court of appeals. Therefore, I respectfully dissent.
                              ____________________




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       J.B. Collier Jr., Lawrence County Prosecuting Attorney, and Brigham M.
Anderson, Assistant Prosecuting Attorney, for appellee.
       The Owen Law Firm, L.L.C., Benjamin A. Tracy, and Todd A. Long, for
appellant.
                         ________________________




                                       15
