[Cite as State v. Duncan, 2014-Ohio-2720.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 8-12-15

        v.

KEVIN DUNCAN,                                            OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Logan County Common Pleas Court
                            Trial Court No. 12-03-0066

                       Judgment Reversed and Cause Remanded

                             Date of Decision: June 23, 2014




APPEARANCES:

        Kenneth J. Rexford for Appellant

        William T. Goslee for Appellee
Case No. 8-12-15


WILLAMOWSKI, P.J.

      {¶1} Defendant-appellant Kevin Duncan (“Duncan”) brings this appeal

from the judgment of the Court of Common Pleas of Logan County finding him

guilty of one count of robbery and sentencing him to a five year prison term.

Duncan challenges the sufficiency of the verdict forms. For the reasons set forth

below, the judgment is reversed.

      {¶2} On March 27, 2012, the Logan County Grand Jury indicted Duncan on

one count of robbery in violation of R.C. 2911.02(A)(2), a felony of the second

degree and one count of trafficking in drugs in violation of R.C. 2925.03(A)(1), a

felony of the fifth degree. Doc. 2. A jury trial was held on October 2 and 3, 2012.

Doc. 48. The jury heard evidence that Duncan took money and a digital recorder

from the victim and struck the victim, knocking her to the ground. Tr. 99-101.

The jury returned a verdict of guilty on the robbery charge and a verdict of not

guilty on the trafficking in drugs charge. Doc. 43 and 44. The verdict form on

count one stated as follows:

      We, the jury, duly impaneled and sworn and affirmed, do
      hereby find the Defendant Guilty of robbery in count One of the
      indictment.




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Doc. 43. A sentencing hearing was held on October 8, 2012, and the trial court

then sentenced Duncan to a prison term of five years.1 Doc. 50. Duncan filed his

notice of appeal from this judgment on November 2, 2012. Doc. 56.

           {¶3} On June 10, 2013, this court affirmed in part and reversed in part the

judgment of the trial court. State v. Duncan, 3d Dist. Logan No. 8-12-15, 2013-

Ohio-2384. On June 17, 2013, Duncan filed a motion with this court to reopen the

appeal pursuant to Appellate Rule 26(B). This court granted that motion on

September 4, 2013, and vacated the prior judgment. Duncan filed his new brief

and raises the following assignment of error.

           The trial court erred by entering a judgment of conviction as to
           Count I Robbery as a felony of the second degree, and
           sentencing accordingly, as the verdict form was sufficient only
           for the lesser offense of robbery as a felony of the third degree.

           {¶4} The sole assignment of error questions the sufficiency of the verdict

form. R.C. 2945.75 sets forth the requirements of a verdict form.

           (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.



1
    The judgment entry was filed on October 22, 2012.

                                                    -3-
Case No. 8-12-15


R.C. 2945.75. The Ohio Supreme Court has addressed what this statute means in

State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735. In Pelfrey,

the defendant had been charged with tampering with records in violation of R.C.

2913.42, which required an enhanced charge of third degree felony when the

tampering involves government records. Id. at ¶3 (citing R.C. 2913.42(B)(4)).

The verdict form did not mention the degree of the offense or that the records

involved were government records. Id. at ¶4. On appeal, Pelfrey challenged his

conviction for a felony under R.C. 2945.75 claiming that he could only be

convicted of a misdemeanor due to errors in the verdict form. Id. Although the

issue had not been raised at the trial court, the appellate court held that the issue

was not waived. Id. at ¶5. The appellate court then determined that pursuant to

R.C. 2945.75, the conviction was only for the least degree of the offense and

reversed the judgment of the trial court. Id. The appellate court then certified the

case to the Supreme Court asking the following 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.

Id. at ¶1. The Supreme Court answered this question with a yes. Id.


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Case No. 8-12-15


       {¶5} In addressing this issue, the Supreme Court determined that the statute

was unambiguous and definite. Id. at ¶11.

       The statutory requirement certainly imposes no unreasonable
       burden on lawyers or trial judges. R.C. 2945.75(A) plainly
       requires that in order to find a defendant guilty of “an offense *
       * * of more serious degree,” the guilty verdict must either state
       “the degree of the offense of which the offender is found guilty”
       or state that “additional element or elements are present.” R.C.
       2945.75(A)(2) also provides, in the very next sentence, what must
       occur if this requirement is not met: “Otherwise a guilty verdict
       constitutes a finding of guilty of the least degree of the offense
       charged.” When the General Assembly has written a clear and
       complete statute, this court will not use additional tools to
       produce an alternative meaning.

Id. at ¶12. The Supreme Court held that “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. Regardless of the

fact that the verdict form incorporated the indictment, that the evidence was clear,

that the jury was properly instructed, and that Pelfrey had failed to raise an

objection, the Supreme Court determined that an error was made and that the

defendant could only be convicted of the least degree of the offense. Id. at ¶14-15.

       {¶6} Following the lead of the Ohio Supreme Court, this court addressed a

question as to whether Pelfrey applied when discussing separate sub-parts with

distinct offense levels in State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-

Ohio-4931. In Sessler, the defendant was charged with two counts of intimidation

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Case No. 8-12-15


in violation of R.C. 2921.04(B), felonies of the third degree. The jury found

Sessler guilty of intimidation in a “manner and form as he [stood] charged in the

indictment.” Id. at ¶13. The verdict form did not specify the degree of the offense

or set forth any aggravating elements. Id. Applying the holding in Pelfrey, this

court held that the verdict forms were insufficient to support the conviction for a

third degree felony and only supported a first degree misdemeanor, the lowest

form of the offense. Id. The fact that the verdict forms referenced the indictment

was insufficient to satisfy the requirements of R.C. 2945.75(A)(2). Id. The State

appealed this decision to the Ohio Supreme Court. The Supreme Court affirmed

this court’s decision in State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180, 891

N.E.2d 318.

      {¶7} In 2009, this court again addressed the specificity required in verdict

forms in the case of State v. Schwable, 3d Dist. Henry No. 7-09-03, 2009-Ohio-

6523. Schwable was indicted on two counts of failing 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. Id. at ¶1. The verdict forms both stated that Schwable had

failed to comply with an order or signal of a police officer and one stated in

addition that the operation of the vehicle caused a substantial risk of serious

physical harm to persons or property. Id. at ¶9. Neither verdict form stated the

degree of the offense or the section number of the statute that was applicable. Id.


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This court held that since the division under which Schwable was charged

contained the additional element of willfully fleeing or eluding a police officer and

the verdict form neither stated the degree of offense or addressed the aggravating

elements, Schwable could only be convicted of the least degree of the offense. Id.

at ¶20-21.

       {¶8} The Supreme Court seemed to be altering this firm statutorily required

stance in its holding in State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970

N.E.2d 891. In Eafford, the defendant was charged with possession of cocaine.

Id. at ¶1. On appeal, the appellate court held that since the verdict did not state the

degree of the offense or specify that Eafford had possessed cocaine, he could only

be convicted of the least degree of the offense as set forth in Pelfrey. Id. The

State appealed the ruling.       The Supreme Court determined that since the

indictment charged the defendant with possession of cocaine, the evidence proved

that fact, the trial court instructed the jury that they must determine that Eafford

possessed cocaine to find him guilty and that the verdict form referenced the

indictment, he could be found guilty of possession of cocaine even though the

verdict form did not specify the drug possessed was cocaine. Id. at ¶2-6. The

Supreme Court reached the following 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

                                         -7-
Case No. 8-12-15


       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.

Id. at ¶19. However, the Supreme Court did not address how R.C. 2945.75(A)(2)

was followed therein or how its holding in Pelfrey would affect its verdict, as was

pointed out by Justices Lanzinger and Pfeifer in the dissent. Id. at ¶21-24.

       {¶9} This court has addressed how the holding in Eafford has affected that

in Pelfrey in State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853. In

Gregory, the defendant was charged with domestic violence in violation of R.C.

2919.25(A), (D)(4), a felony of the third degree. Gregory was convicted of the

offense and appealed. Id. at ¶4-5. Gregory claimed in his assignment of error that

the verdict form was insufficient under R.C. 2945.75(A)(2) to support his

conviction for a third degree felony. Id. at ¶6. When addressing the apparent

inconsistencies between the holdings in Pelfrey, and Eafford, this court stated as

follows.

       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

                                        -8-
Case No. 8-12-15


       that the verdict incorporates the language 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.” * * *
       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. * * *

       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 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.

Id. at ¶17-18. This court then held that a verdict form which merely stated that

Gregory was guilty of domestic violence did not comply with R.C. 2945.75(A)(2)

and resulted in plain error. Id. at ¶21. This court then reversed the conviction

finding that he could only be convicted of the least degree of the offense. Id. at

¶26.

       {¶10} Recently, the Ohio Supreme Court has again addressed this issue in

State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374. In

McDonald, the defendant was indicted on and found guilty by a jury of a 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). Id. at ¶3. The verdict form in

the case indicated that McDonald was guilty of failure to comply with order or

signal of police officer and caused a substantial risk of serious physical harm to

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Case No. 8-12-15


person or property. Id. at ¶6. McDonald appealed the conviction arguing that the

verdict form did not set out the degree of the offense or list the aggravating

elements to elevate the offense from a misdemeanor to a felony. Id. at ¶9. The

appellate court denied the appeal and affirmed the trial court. Id. at ¶11. Noting

that its decision was in direct contradiction of that of this court in Schwable, the

appellate court certified a conflict and raised the following issue. McDonald,

supra at ¶12.

       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)?

Id. The Supreme Court discussed the facts of the case in light of its prior holding

in Pelfrey, but did not address the holding in Eafford. The Supreme Court stated

that “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.” Id. at ¶17. “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 jury to determine whether, pursuant to R.C.

2945.75, McDonald was properly convicted of a third-degree felony.” Id. at ¶18.

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This is different from what the Supreme Court did in Eafford, where the Supreme

Court considered the indictment, the evidence, and the jury instructions as well as

the verdict. The most recent pronouncement of the Supreme Court is that nothing

outside of the verdict form should be considered in reaching a conclusion as to

whether the verdict form is sufficient to support a conviction for anything greater

than an offense of the least degree. Id. at ¶19.

       {¶11} In the case before us, Duncan was charged with robbery in violation

of R.C. 2911.02(A)(2), which is a second degree felony.

       (A) No person in attempting or committing a theft offense or in
       fleeing immediately after the attempt or offense, shall do any of
       the following:

       (1) Have a deadly weapon on or about the offender’s person or
       under the offender’s control;

       (2) Inflict, attempt to inflict, or threaten to inflict physical
       harm on another;

       (3) Use or threaten the immediate use of force against another.

       (B) Whoever violates this section is guilty of robbery. A
       violation of division (A)(1) or (2) of this section is a felony of the
       second degree. A violation of division (A)(3) of this section is a
       felony of the third degree.

R.C. 2911.02. To raise the degree of offense for robbery from a third degree to a

second degree felony, the state must prove certain additional elements. In this

case, the State was required to prove that the defendant inflicted, attempted to

inflict, or threatened to inflict physical harm in order to satisfy subsection (A)(2),

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and obtain a conviction for a felony of the second degree. The third degree felony

only requires the State to prove that the defendant used or threatened the use of

immediate force. A robbery pursuant to R.C. (A)(3) has been determined to be a

lesser included offense of (A)(2) because the infliction, attempt to inflict or threat

to inflict physical harm requires that a defendant also use or threaten to use force.

State v. Watson, 154 Ohio App.3d 150, 2003-Ohio-4664, 796 N.E.2d 578 (8th

Dist.); State v. Bell, 8th Dist. Cuyahoga No. 87813, 2006-Ohio-6762; and State v.

Jones, 193 Ohio App.3d 400, 2011-Ohio-1717, 952 N.E.2d 513 (12th Dist.).2 Thus

the degree of offense changes upward from a third degree to a second degree

offense if the State can prove the additional factor of a threat, attempt, or infliction

of physical harm.

         {¶12} The verdict form in this case, as set forth above, did not specify the

degree of the offense and did not state the additional element that would allow this

offense to be a second degree felony rather than a third degree felony. This is a

requirement of R.C. 2945.75(A)(2). Pelfrey, supra. This court may only consider

the language of the verdict form to determine the statutory compliance.

McDonald, supra at ¶18 and R.C. 2945.75(A)(2). Thus, pursuant to the holdings

of the Ohio Supreme Court in Pelfrey and McDonald, as well as the “clear and


2
  This court recognizes that the 10th District has indirectly held that a violation of (A)(3) is not a lesser
included offense of (A)(2) by finding that they are separate, distinct offenses. State v. Brown, 10th Dist.
Franklin Nos. 10AP-836, 10AP-845, 2011-Ohio-3159. The dissent cites to several other cases, however,
they focus on different statutes and address issues outside of the verdict form.

                                                   -12-
Case No. 8-12-15


complete” statute, R.C. 2945.75(A)(2), the verdict form in this case does not meet

the statutory requirements of R.C. 2945.75(A)(2). The language of the statute

clearly states that if the degree of the offense is not set forth in the verdict form or

if such additional element/elements which makes/make an offense one of more

serious degree is/are not listed, then the remedy is that the defendant may only be

convicted of the least degree of the offense. Therefore, Duncan can only be

convicted of robbery as a felony of the third degree in this case. The assignment

of error is sustained.

       {¶13} Having found error prejudicial to the Appellant, the judgment of the

Court of Common Pleas of Logan County is reversed and the matter is remanded

for further proceedings in accord with this opinion.

                                                             Judgment Reversed and
                                                                  Cause Remanded


ROGERS, J., Concurring separately.

       {¶14} I concur with the result reached by the majority in this case.

However, I write separately to express my dismay by the dissent’s reliance on

State v. Brown, 10th Dist. Franklin Nos. 10AP-836, 10AP-845, 2011-Ohio-3159,

an opinion that is unpersuasive and inconsistent with this court’s own precedent,

and the dissent’s erroneous consideration of matters outside of the verdict form to

determine that there is no plain error.


                                          -13-
Case No. 8-12-15


       {¶15} I must first state that I am appalled by the lack of legal acuity that

allows this issue to reoccur after seven years of discussion and judicial opinions

addressing it. This issue could, and should, have been eliminated during the

preparation of the verdict form by simply adding a few words. We can hope that

in the future prosecutors and trial courts will carefully review the verdict form

before submitting it to the jury and that such lapses will not be repeated.

       {¶16} The dissent has placed an inordinate amount of importance on the

term “additional elements” and has argued that the various subsections of the

robbery statute do not contain “additional elements,” but rather each subsection

specifies a different offense. To support its position, the dissenting opinion relies

on the Tenth District’s opinion in Brown, an opinion which is both unpersuasive

and inconsistent with this court’s precedent.

       {¶17} The court in Brown reasoned that Pelfrey does not apply to a verdict

form for a robbery conviction under R.C. 2911.02 because each subsection of the

statute “creates a separate offense and has a separate penalty. * * * There are no

additional elements or attendant circumstances, unlike the statute in Pelfrey, that

can increase the degree of the offense or the penalty.” Brown, 2011-Ohio-3159, ¶

13.

       {¶18} This characterization of R.C. 2911.02 is in conflict with the recent

ruling in State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042. In McDonald,


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Case No. 8-12-15


the statute at issue contained the essential elements of two separate and distinct

offenses of failing to comply with the order of a police officer, however, “[t]he

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).” (Emphasis added.) Id. at ¶ 22.

While the verdict form did not specify the elements of either path, it did specify

the additional finding that would have been necessary to elevate the offense from a

misdemeanor to a felony. Id. at ¶ 25. The Court noted:

       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).

Id. at ¶ 24. As the court could not tell from the verdict form which path the jury

chose, McDonald could only be found guilty of the least form of the offense. Id.

at ¶ 25.

       {¶19} Here, R.C. 2911.02 plainly states:

       (A) No person, in attempting or committing a theft offense or in
       fleeing immediately after the attempt or offense, shall do any of the
       following:

       (1) Have a deadly weapon on or about the offender’s person or
       under the offender’s control;

       (2) Inflict, attempt to inflict, or threaten to inflict physical harm on
       another;


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Case No. 8-12-15


      (3) Use or threaten the immediate use of force against another.

      (B) Whoever violates this section is guilty of robbery. A violation
      of division (A)(1) or (2) of this section is a felony of the second
      degree. A violation of division (A)(3) of this section is a felony of
      the third degree.

R.C. 2911.02(A) criminalizes one offense, robbery, but it creates different paths

for the jury to find the defendant guilty of the robbery offense depending on the

attendant circumstances surrounding an offender’s conviction. If the attendant

circumstances listed in R.C. 2911.02(A)(1) or (2) are present, then R.C.

2911.02(B) states that the offender is guilty of a second degree felony.

Conversely, if the attendant circumstance listed in R.C. 2911.02(A)(3) is present,

then R.C. 2911.02(B) states that the offender is merely guilty of a third degree

felony. Based on these dynamics, R.C. 2911.02 clearly refers to two different sets

of attendant circumstances that vary the degree of felony and Brown’s statement to

the contrary should be disregarded. The opinion in Brown also completely ignores

the issue that a robbery committed pursuant to R.C. 2911.02(A)(3) is a lesser

included offense of R.C. 2911.02(A)(2), and that the presence of an additional

attendant circumstance is what will elevate the offense. See Majority Opin., ¶ 11.

      {¶20} In addition to Brown’s flawed reasoning, Brown is inconsistent with

this court’s own precedent. In State v. Haller, 3d Dist. Allen No. 1-11-34, 2012-

Ohio-5233, we found that Pelfrey applied to a verdict form finding the defendant



                                       -16-
Case No. 8-12-15


guilty of R.C. 2911.123, which has a similar statutory framework as R.C. 2911.02.

Id. at ¶ 61. We have also found that Pelfrey applied to a verdict form finding the

defendant guilty of R.C. 2921.04, which also has a similar statutory structure as

R.C. 2911.02. State v. Sessler, 3d Dist. Crawford No. 3-06-23, 2007-Ohio-4931, ¶

13, aff’d 119 Ohio St.3d 9, 2008-Ohio-3180. Therefore, the dissent’s reliance on

Brown is misplaced.

           {¶21} Further, the dissent states “assuming somehow that there were

additional elements or attendant circumstances to consider in the verdict form, I




3
    R.C. 2911.22, in relevant part, states:

       (A) No person, by force, stealth, or deception, shall do any of the following:

       (1) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
           occupied structure, when another person other than an accomplice of the offender is present, with
           purpose to commit in the structure or in the separately secured or separately occupied portion of
           the structure any criminal offense;

       (2) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
           occupied structure that is a permanent or temporary habitation of any person when any person
           other than an accomplice of the offender is present or likely to be present, with purpose to commit
           in the habitation any criminal offense;

       (3) Trespass in an occupied structure or in a separately secured or separately occupied portion of an
           occupied structure, with purpose to commit in the structure or separately secured or separately
           occupied portion of the structure any criminal offense.

       ***

       (D) Whoever violates division (A) of this section is guilty of burglary. A violation of division (A)(1)
           or (2) of this section is a felony of the second degree. A violation of division (A)(3) of this section
           is a felony of the third degree.


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would apply Eafford to this case over Pelfrey or McDonald.”4 Dissent Opin., ¶ 22.

The dissent then looks at the indictment, the evidence presented at trial, and

closing arguments to determine that there was no plain error in this matter,

something that is expressly and unambiguously prohibited by the Ohio Supreme

Court. See State v. McDonald, 2013-Ohio-5042, ¶ 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.”); Pelfrey, 2007-Ohio-256, ¶ 14 (“The express requirement

of [R.C. 2945.75] cannot be fulfilled by demonstrating additional circumstances,

such as 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 * * *.”).

        {¶22} The Ohio Supreme Court in Pelfrey and McDonald instruct us we

cannot go outside of the verdict form to determine which form/degree of the

offense has been found. Since almost every case the dissent cites to looks outside

the verdict form to determine the level of the offense, I do not find those cases

persuasive. Therefore, because we cannot determine from the verdict form which
4
  In State v. Gregory, 3d Dist. Hardin No. 6-12-02, 2013-Ohio-853, the dissenting opinion heavily
criticized the majority opinion for using an “apparent personal preference for the Pelfrey decision” and
stated that it was not aware of any “legal basis for an intermediate court of appeals taking such a position
with regard to the most recent decision of the Ohio Supreme Court * * *.” Id. at ¶ 34. However, in the case
sub judice, the dissent appears to have a personal preference for the Eafford decision and chooses to ignore
the most recent decision of the Ohio Supreme Court, McDonald.

                                                   -18-
Case No. 8-12-15


subsection applies, we can only authorize a conviction on the least degree of the

offense.



SHAW, J., Dissents.

      {¶23} I respectfully dissent.   The decision of the majority is in direct

conflict with decisions of the Second, Fourth, Fifth, Ninth, Tenth and Eleventh

District Courts of Appeals, all of which have concluded that R.C. 2945.75 and the

Pelfrey decision do not apply to criminal statutes, including the one before us,

where there are no “additional elements” that can increase the degree or the

penalty for the stated offense. As these decisions demonstrate, the analysis of the

majority in this case is flawed in presuming that the various subsections (1), (2),

and (3) of Ohio’s Robbery statute, R.C. 2911.02(A), merely set forth enhanced

additional elements of some least serious form of Robbery, when in fact, each of

those subsections sets forth an entirely separate and distinct offense of Robbery,

each with its own unique set of elements necessary to constitute that particular

offense.

      {¶24} In State v. Brown, 10th Dist. No. 10AP-836, 10AP-845, 2011-Ohio-

3159, the Tenth District Court of Appeals considered the exact question before

this court and determined that an essentially identical verdict form dealing with

R.C. 2911.02(A)(2) did not violate R.C. 2945.75 or Pelfrey. Because I would


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Case No. 8-12-15


apply the Tenth District’s unanimous analysis in the case before us, I quote from it

at length.

       Brown raises this challenge in connection with his conviction for
       the second-degree felony form of robbery, R.C. 2911.02(A)(2).
       The jury signed a verdict form for that count which read, in
       pertinent part: “[w]e the jury find defendant, Paul R. Brown
       GUILTY OF ROBBERY, as he stands charged in * * * the
       Indictment.” Brown was indicted under R.C. 2911.02(A)(2) and
       (3). The verdict form does not contain the degree of the offense
       or any statement of an aggravating element. Based upon Pelfrey,
       Brown contends that he can be convicted only of the least degree
       of the offense. We disagree.

       R.C. 2911.02(A) prohibits three different kinds of conduct while
       the offender is attempting or committing a theft offense, or in
       fleeing immediately thereafter the attempt or offense: (1) have a
       deadly weapon on the offender’s person; (2) inflict, attempt to
       inflict, or threaten to inflict physical harm on another; or (3) use
       or threaten the immediate use of force against another. Each
       provision creates a separate offense and has a separate penalty.
       R.C. 2911.02(B). There are no additional elements or attendant
       circumstances, unlike the statute in Pelfrey, that can increase the
       degree of the offense or the penalty. Therefore, Brown’s
       reliance on Pelfrey is misplaced. See State v. Kepiro, 10th Dist.
       No. 06AP–1302, 2007–Ohio–4593, ¶ 33–34 (distinguishing
       Pelfrey in similar manner in analyzing verdict form for violation
       of R.C. 2907.05); State v. Crosky, 10th Dist. No. 06AP655, 2008–
       Ohio–145, ¶ 143–53.

       Here, the verdict form did not need to include the degree of the
       offense or a statement that an aggravating element has been
       found by the jury because R.C. 2911.02(A)(2) is a separate and
       distinct offense with its own penalty. Accordingly, the verdict
       form did not violate R.C. 2945.72 and we overrule Brown’s
       second assignment of error.

Brown, ¶¶ 12-14.


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Case No. 8-12-15


       {¶25} The Tenth District’s decision in Brown makes clear that where no

additional elements are present to enhance a crime, reliance on Pelfrey is

misplaced.   This is consistent with R.C. 2945.75, as R.C. 2945.75 is only

applicable by its own language “[w]hen the presence of one or more additional

elements makes an offense one of more serious degree[.]” (Emphasis added.)

R.C. 2945.75(A). The statute, by its own language, does not apply to the essential

elements of a crime. As the Tenth District stated in Brown there are no “additional

elements” in R.C. 2911.02. The elements of each different Robbery subsection are

separate and distinct offenses, containing only the essential elements. Therefore,

Pelfrey is not applicable to R.C. 2911.02(A)(2).

       {¶26} Brown’s holding is not unique regarding the inapplicability of

Pelfrey and R.C. 2945.75 to certain statutes.      It is consistent with numerous

decisions from other Ohio Appellate Districts wherein Pelfrey and/or R.C.

2945.75 have been found not to be applicable to various statutes where there are

no additional elements and where, as here, statutory subsections actually constitute

entirely separate offenses, each with their own unique set of elements.

       {¶27} See, for example: State v. Edwards, 9th Dist. Lorain No.

12CA010274, 2013-Ohio-3068, ¶¶ 35-36 (holding “[a] violation of R.C.

2907.05(A)(4) [Gross Sexual Imposition] is a felony of the third degree. * * *

There are no additional elements that will enhance this offense to a higher degree.


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Case No. 8-12-15


R.C. 2907.05 does contain other subsections, but each has their own separate

elements[.]” Therefore, Pelfrey does not apply to R.C. 2907.05(A)(4).); State v.

Anderson, 9th Dist. Summit No. 26640, 2014-Ohio-1206, ¶ 30 (finding Pelfrey

inapplicable to R.C. 2905.01 [Kidnapping] because “no aggravating or additional

element must be proved by the State to elevate kidnapping to a felony of the first

degree” rather “the defendant bears the burden of establishing the existence of a

mitigating factor which might reduce the offense level.”); State v. Reynolds, 5th

Dist. Richland No. 09-CA-13, 2009-Ohio-3998, ¶¶ 43-45 (holding “R.C. 2921.36,

[Prohibited conveying of certain items onto property of state facilities] which

Appellant was convicted under, prohibits different kinds of conduct * * *

[therefore] [t]here is no enhancement necessary” and Pelfrey/R.C. 2945.75 do not

apply); State v. Jones, 4th Dist. Adams No. 13CA960, 2013-Ohio-5889, ¶¶ 11, 17

(holding “[t]he illegal conveyance statute found in R.C. 2921.36 is a statute in

which each division stands alone. * * * Merely because there are different levels

of offenses contained within one statute does not mean that the statute is subject to

the language of R.C. 2945.75” and therefore Pelfrey is not applicable) (Emphasis

added.) (Citation omitted); State v. Norman, 4th Dist. Ross No. 08CA3059, 2009-

Ohio-5458, ¶ 62 (holding, “Aggravated Robbery under R.C. 2911.01 does not

have multiple degrees of seriousness. For this reason, R.C. 2911.01 differs from

the statutes addressed in Pelfrey[.] * * * All offenses under R.C 2911.01 are


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Case No. 8-12-15


felonies of the first degree. * * * Therefore, * * * (1) R.C. 2945.75(A)(2) and

Pelfrey do not apply to the present case; and (2) the verdict form did not have to

include the degree of the offense or any aggravating elements to justify a

conviction for Aggravated Robbery.”); State v. Nethers, 5th Dist. Licking No.

07CA78, 2008-Ohio-2679 (finding Pelfrey did not apply to R.C. 2907.05(A)(4),

Gross Sexual Imposition, as there are no additional elements); State v. Hill, 10th

Dist. Franklin No. 09AP-398, 2010-Ohio-1687, ¶ 35 (holding “[a]bsent any

degree-enhancing elements, Felonious Assault [in violation of R.C. 2903.11(D)] is

a felony of the second degree” and R.C. 2945.75/Pelfrey are not applicable); State

v. Randles, 9th Dist. Summit No. 26629, 2013-Ohio-4681, ¶ 9 (holding

“that Pelfrey is   inapplicable   with      respect   to   violations   of Section

2907.02(A)(1)(b),” [Rape]). See also State v. Vance, 2d Dist. Montgomery No.

16322, 1997 WL 736496 (Nov. 26, 1997) (holding “[i]n gross sexual imposition

as charged and indicted in this case under 2907.05(A)(3), the age of the victim is

an essential element. It is not an additional element”); State v. Brady, 2d Dist.

Montgomery No. 18682, 2001-Ohio-1445, (holding R.C. 2945.75 “is not

applicable when an individual is indicted for Aggravated Burglary under R.C.

2911.11(A) [because] [t]here [are] no “additional elements [which] make[] [the]

offense one of more serious degree.”); State v. Poling, 11th Dist. Trumbull No. 88-

T-4112, 1991 WL 84229 (May 17, 1991) (holding “although the two types of


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Case No. 8-12-15


Abuse of a Corpse defined under R.C. 2927.01(A) and (b) differ in degree, they

are not distinguishable by the existence of the one additional element referred to in

R.C. 2945.75(A)(2). Instead, the two types of abuse contain different elements * *

* [t]hus, R.C. 2945.75(A)(2) is not applicable in this situation.”); State v.

Alderman, 4th Dist. Athens No. CA 1433, 1990 WL 253034 (Dec. 11, 1990)

(holding “[Gross Sexual Imposition in violation of R.C. 2907.05(A)(3)] is always

a felony of the third degree. There are no additional elements which raise or lower

the penalty for that section. Each crime entails a unique element, not an additional

element. Therefore, R.C. 2945.75 is not applicable.”).

           {¶28} In formulating a decision that runs contrary to the foregoing case

law, the majority cites to State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180. In

Sessler, the Ohio Supreme Court was presented with the question as to whether

Pelfrey is “applicable to charging statutes that contain separate sub-parts with

distinct offense levels?” Without opinion or any explanation, the Ohio Supreme

Court answered this question in the affirmative under the authority of Pelfrey.

State v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180.5

           {¶29} I share some of the obvious frustration noted by the majority over the

fact that the Ohio Supreme Court has released decisions after Pelfrey, including




5
    While there was no written opinion by the majority, there was a written dissent.

                                                      -24-
Case No. 8-12-15


Eafford, McDonald6 and Sessler, which appear to summarily modify, contradict or

in the case of Sessler, perhaps confirm key aspects of the Pelfrey decision - all

without directly addressing any of the above. In this regard, it does not appear that

anyone, including the Ohio Supreme Court, has a satisfactory explanation for the

Sessler language.

         {¶30} Nevertheless, the confusion or lack of clarity created by the Ohio

Supreme Court with regard to the Pelfrey decision or even the unexplained,

summary ruling in Sessler should not prevent us from recognizing that the case

before us does not present a Pelfrey issue in the first place. Clearly, the other

appellate districts in Ohio would seem to agree and I would note in particular, that

a number of these decisions including Brown, Anderson, Hill, Norman, Reynolds,

Randles, Jones and Edwards, supra, were released after Sessler,7 and still found




6
  The concurring opinion relies heavily on the Ohio Supreme Court’s recent decision in State v. McDonald,
137 Ohio St.3d 517, 2013-Ohio-5042. The statute at issue in McDonald, R.C. 2921.331, is clearly
distinguishable from the statute in this case. In McDonald the statute specifically required additional fact-
finding by the jury in order to elevate the offense from a misdemeanor to a felony, thus clearly mandating
the application of R.C. 2945.75 with regard to verdict forms. No such additional elements or “additional
fact-finding” is required under the statute before us making McDonald just as inapplicable to this case as
Pelfrey. See State v. Jones, 4th Dist. Adams No. 13CA960, 2013-Ohio-5889, ¶¶ 16-18 (wherein the Fourth
District Court of Appeals distinguished McDonald on the basis that the verdict form in McDonald required
additional elements, whereas the statute at issue in Jones, R.C. 2921.36, did not. The Fourth District
specifically found that a statute containing separate and distinct offense levels, like the statute before us,
does not warrant the application of Pelfrey or McDonald. Id. at ¶¶ 9, 18.); see also State v. Anderson,
supra.
7
  Nethers, which we also cited, was released just before Sessler; however the analysis in Nethers was cited
in a later opinion discussing the same issue when the case was back up for appeal. State v. Nethers, 5th
Dist. Licking No. 10-CA-94, 2011-Ohio-1317, ¶¶ 12-20. Although the same analysis was cited by majority
in Nethers II, the issue was ultimately decided based on the doctrine of res judicata. Id. at ¶ 21.

                                                    -25-
Case No. 8-12-15


Pelfrey inapplicable where a statutory subsection contains only essential elements,

and no “additional” elements.8

         {¶31} Based on the foregoing authority and analysis, I would find that the

verdict form in this case does not invoke an issue under either R.C. 2945.75 or the

Pelfrey decision as there are no “additional elements” in the statutory subsection

before us.9 However, even assuming somehow that there were additional elements

or attendant circumstances to consider in the verdict form, I would apply Eafford

to this case over Pelfrey or McDonald. The majority addresses and summarizes all

three of these cases in its opinion, so I will not reiterate them here. For the sake of

brevity, I will simply say that the indictment in this case contained the appropriate

language of the offense and that language was incorporated into the verdict form.

All of the evidence at trial and the closing arguments carefully addressed the

elements at issue. As a result, I would find that, under Eafford, there was no plain

error in these circumstances. See State v. Gregory, 3d Dist. Hardin No. 6-12-02,

2013-Ohio-853, ¶¶ 29-41 (Shaw, J. dissenting).

8
   In fact, Edwards and Jones discussed Sessler and still found Sessler and Pelfrey/R.C. 2945.75
inapplicable to the statute in those cases.
9
  Finally, I would note in passing that the approach adopted by the majority today in failing to recognize the
difference between “additional elements” which enhance the degree of the least form of the offense and the
“unique set of elements for separate offenses in each subsection” in many of Ohio’s criminal statutes could
be somewhat problematic to interpret in future cases. For example, if a charge of Robbery under section
(A)(1) of R.C. 2911.02, which requires only the theft offense and a deadly weapon with no evidence of
force or threat of force, were to be ruled a Pelfrey violation for failure of the verdict form to specify the
deadly weapon, there is no “least degree of the offense of Robbery” conforming to the remaining
subsections of the statute and under our decision today, the only crime stated by the verdict form in such a
case would be that of petty theft. Such a ruling would itself seem to violate both the Pelfrey decision and
the express language of R.C. 2945.75.


                                                    -26-
Case No. 8-12-15


       {¶32} I would affirm the judgment of the trial court.

/jlr




                                        -27-
