State v. Jones , 2013 Ohio 5889 ( 2013 )

[Cite as State v. Jones, 2013-Ohio-5889.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ADAMS COUNTY
STATE OF OHIO, : Case No. 13CA960
:
Plaintiff-Appellee, :
: DECISION AND
v. : JUDGMENT ENTRY
:
KATHY JONES, :
: RELEASED: 12/20/13
Defendant-Appellant. :
______________________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Ohio Assistant Public
Defender, Columbus, Ohio, for appellant.
C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams
County Assistant Prosecutor, West Union, Ohio, for appellee.
______________________________________________________________________
Harsha, J.
{¶1} Kathy Jones appeals her third-degree felony conviction for illegal
conveyance of weapons or other prohibited items onto the grounds of a detention facility
or institution, in violation of R.C. 2921.36(A)(2). Jones argues that the trial court erred
by entering a judgment of conviction against her for a third-degree felony because the
jury’s verdict form did not state the degree of the offense or the aggravating element, as
required by R.C. 2945.75(A)(2). Therefore, she contends that she could only be
convicted of the least degree of the offense charged, a second-degree misdemeanor.
{¶2} However, R.C. 2945.74(A)(2) only applies when the presence of one or
more additional elements makes an offense one of more serious degree. Here, the jury
found Jones guilty of illegal conveyance in violation of R.C. 2921.36(A)(2). Under R.C.
2921.36(G)(2), a violation of subsection (A)(2) can only result in a third-degree felony
Adams App. No. 13CA960 2
conviction. Because there are no aggravating elements necessary to enhance the
penalty, R.C. 2945.74(A)(2) does not apply and the jury’s verdict form was sufficient to
convict Jones of a third-degree felony.
I. FACTS
{¶3} Jones was charged with one count of illegal conveyance of weapons or
other prohibited items onto the grounds of a detention facility or institution, in violation of
R.C. 2921.36(A)(2), a third-degree felony. The state alleged that Jones placed six
Suboxone tablets into the waistband of men’s underwear, and tried to have the
underwear delivered to her son in the Adams County Jail.
{¶4} Jones pleaded not guilty and the matter proceeded to trial. The jury
returned a guilty verdict and the trial court sentenced her to a two year prison term.
This appeal followed.
II. ASSIGNMENTS OF ERROR
{¶5} Jones raises one assignment of error for our review:
1. “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT
ENTERED A JUDGMENT OF CONVICTION AGAINST MS. JONES FOR
THIRD-DEGREE FELONY ILLEGAL CONVEYANCE OF WEAPONS,
DRUGS OR OTHER PROHIBITED ITEMS ONTO THE GROUNDS OF A
DETENTION FACILITY OR INSTITUTION, IN VIOLATION OF R.C.
2945.75(A)(2), AND IN VIOLATION OF MS. JONES’ RIGHTS TO DUE
PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION, AND ARTICLE I, SECTION 16, OF THE OHIO
CONSTITUTION.”
III. LAW AND ANALYSIS
{¶6} Initially, Jones indicates that she did not object to the verdict forms at trial
and our review confirms that fact. Nevertheless, “the Supreme Court of Ohio has
recognized error, even in the absence of an objection at trial, when a verdict form fails
Adams App. No. 13CA960 3
to comply with R.C. 2945.75(A)(2).” Portsmouth v. Wrage, 4th Dist. Scioto No.
08CA3237, 2009-Ohio-3390, ¶ 42, citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-
Ohio-256, 860 N.E.2d 735.
{¶7} R.C. 2945.75(A)(2) provides: “When the presence of one or more
additional elements makes an offense one of more serious degree: * * * 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.” And “[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 element has been found to justify convicting a defendant of a greater
degree of a criminal offense.” Pelfrey at syllabus.
{¶8} “However, R.C. 2945.75(A)(2) and Pelfrey apply only to criminal offenses
with multiple degrees of seriousness. For example, in Pelfrey, the defendant was found
guilty of tampering with records in violation of R.C. 2913.42. Depending on the
seriousness of the conduct, tampering with records under R.C. 2913.42 may be a
misdemeanor of the first degree, a felony of the fifth degree, a felony of the fourth
degree, or a felony of the third degree. * * * The verdict form in Pelfrey did not list the
aggravating element (tampering with government records) or the degree of the offense
(a third degree felony pursuant to R.C. 2913.42(B)(4)). * * * As a result, the defendant
could ‘be convicted only of a misdemeanor offense, which is the least degree under
R.C. 2913.42(B) of the offense of tampering with records.’” State v. Norman, 4th Dist.
Ross Nos. 08CA3059, 08CA3066, 2009-Ohio-5458, ¶ 61, quoting Pelfrey at ¶ 13.
Adams App. No. 13CA960 4
{¶9} Here, Jones was convicted of illegal conveyance of weapons or prohibited
items onto the grounds of a detention facility or institution, in violation of R.C.
2921.36(A)(2). Jones argues that because R.C. 2921.36 “includes aggravating
elements that must be found before penalty enhancement” and “contains separate sub-
parts with distinct offense levels,” the statute is subject to the R.C. 2945.75(A)(2) and
Pelfrey. We agree the statute contains several distinct levels of offenses but we do not
agree Pelfrey requires the verdict form to identify an enhancing element or the degree
of defense.
{¶10} R.C. 2921.36 states:
(A) No person shall knowingly convey, or attempt to convey, onto the
grounds of a detention facility or of an institution, office building, or other
place that is under the control of the department of mental health and
addiction services, the department of developmental disabilities, the
department of youth services, or the department of rehabilitation and
correction any of the following items:
(1) Any deadly weapon or dangerous ordnance, as defined in section
2923.11 of the Revised Code, or any part of or ammunition for use in such
a deadly weapon or dangerous ordnance;
(2) Any drug of abuse, as defined in section 3719.011 of the Revised
Code;
(3) Any intoxicating liquor, as defined in section 4301.01 of the Revised
Code.
***
(C) No person shall knowingly deliver, or attempt to deliver, to any person
who is confined in a detention facility, to a child confined in a youth
services facility, to a prisoner who is temporarily released from
confinement for a work assignment, or to any patient in an institution
under the control of the department of mental health and addiction
services or the department of developmental disabilities any item listed in
division (A)(1), (2), or (3) of this section.
Adams App. No. 13CA960 5
(D) No person shall knowingly deliver, or attempt to deliver, cash to any
person who is confined in a detention facility, to a child confined in a youth
services facility, or to a prisoner who is temporarily released from
confinement for a work assignment.
(E) No person shall knowingly deliver, or attempt to deliver, to any person
who is confined in a detention facility, to a child confined in a youth
services facility, or to a prisoner who is temporarily released from
confinement for a work assignment a cellular telephone, two-way radio, or
other electronic communications device.
** *
(G)
(1) Whoever violates division (A)(1) of this section or commits a violation
of division (C) of this section involving an item listed in division (A)(1) of
this section is guilty of illegal conveyance of weapons onto the grounds of
a specified governmental facility, a felony of the third degree. If the
offender is an officer or employee of the department of rehabilitation and
correction, the court shall impose a mandatory prison term.
(2) Whoever violates division (A)(2) of this section or commits a violation
of division (C) of this section involving any drug of abuse is guilty of illegal
conveyance of drugs of abuse onto the grounds of a specified
governmental facility, a felony of the third degree. If the offender is an
officer or employee of the department of rehabilitation and correction or of
the department of youth services, the court shall impose a mandatory
prison term.
(3) Whoever violates division (A)(3) of this section or commits a violation
of division (C) of this section involving any intoxicating liquor is guilty of
illegal conveyance of intoxicating liquor onto the grounds of a specified
governmental facility, a misdemeanor of the second degree.
(4) Whoever violates division (D) of this section is guilty of illegal
conveyance of cash onto the grounds of a detention facility, a
misdemeanor of the first degree. If the offender previously has been
convicted of or pleaded guilty to a violation of division (D) of this section,
illegal conveyance of cash onto the grounds of a detention facility is a
felony of the fifth degree.
(5) Whoever violates division (E) of this section is guilty of illegal
conveyance of a communications device onto the grounds of a specified
governmental facility, a misdemeanor of the first degree, or if the offender
Adams App. No. 13CA960 6
previously has been convicted of or pleaded guilty to a violation of division
(E) of this section, a felony of the fifth degree.
{¶11} “The illegal conveyance statute found in R.C. 2921.36 is a statute in
which each division stands alone.” State v. Reynolds, 5th Dist. Richland No. 09-CA-13,
2009-Ohio-3998, ¶ 22. “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.” Id. at ¶ 40, citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860
N.E.2d 735. The offense and penalty in our situation is controlled solely by R.C.
2921.36(A)(2) & (G)(2) respectively.
{¶12} Here, the jury’s verdict form stated:
WE THE JURY, FIND THE DEFENDANT: KATHY JONES Guilty OF:
ILLEGAL CONVEYANCE OF WEAPONS OR PROHIBITED ITEMS
ONTO THE GROUNDS OF A DETENTION FACILITY OR INSTITUTION
IN VIOLATION OF R.C. SECTION 2921.36(A)(2).
Under R.C. 2921.36(G)(2), illegally conveying a drug of abuse onto the grounds of a
detention facility or institution in violation of R.C. 2921.36(A)(2), is a felony of the third
degree. It is not necessary to find an additional element present to elevate the crime to
a third-degree felony. Reynolds at ¶ 45. If the state had failed to prove any of the
elements in R.C. 2921.36(A)(2), Jones would have been acquitted, not convicted of a
lesser degree of illegal conveyance. See State v. Edwards, 9th Dist. Lorain No.
12CA010274, 2013-Ohio-3068, ¶ 35. Accordingly, R.C. 2945.75(A)(2) and Pelfrey are
inapplicable to the facts of this case, and the jury’s verdict form did not need to specify
the degree of the offense or the aggravating elements. See Reynolds at ¶ 21.
{¶13} Jones further contends that the Supreme Court of Ohio’s decision in State
v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180, 891 N.E.2d 318 (Sessler III), requires
Adams App. No. 13CA960 7
that we vacate her third-degree felony, and remand her case for resentencing for the
least serious degree of illegal conveyance under 2921.36, a second-degree
misdemeanor.
{¶14} Following Pelfrey, the Supreme Court certified a conflict between State v.
Kepiro, 10th Dist. No. 06AP-1302, 2007-Ohio-4593 (Kepiro I) (Pelfry applies to the GSI
statute) and State v. Sessler, 3rd Dist. Crawford No. 3-06-23, 2007-Ohio-4931 (Sessler
I) (Pelfrey applies to the intimidation statute) to address whether “the holding in State v.
Pelfrey, 112 Ohio St.3d 422, 860 N.E.2d 735, [is] applicable to charging statutes that
contain separate sub-parts with distinct offense levels[.]” State v. Sessler, 116 Ohio
St.3d 1505, 2008-Ohio-381 (Sessler II). The Court answered the question affirmatively
and simply affirmed the court’s decision in Sessler I “on the authority of State v. Pelfrey
(citation omitted).” Sessler III at ¶ 1. However, the Court later declined to accept
Kepiro’s appeal for review. State v. Kepiro, 119 Ohio St.3d 1408, 2008-Ohio-3880, 891
N.E.2d 769 (Kepiro II).
{¶15} However, Sessler I is distinguishable from the facts of this case. The
statute at issue in Sessler I “increased the punishment when the basic offense crime
was committed in a more serious manner through the presence of additional elements
or aggravating factors.” State v. Kepiro, 10th Dist. No. 09AP-19, 2009-Ohio-4654, ¶ 18
(Kepiro III). The defendant in Sessler was convicted of intimidation in violation of R.C.
2921.04(B). Sessler I at ¶ 4. The intimidation statute states:
A) No person shall knowingly attempt to intimidate or hinder the victim of a
crime or delinquent act in the filing or prosecution of criminal charges or a
delinquent child action or proceeding, and no person shall knowingly
attempt to intimidate a witness to a criminal or delinquent act by reason of
the person being a witness to that act.
Adams App. No. 13CA960 8
(B) No person, knowingly and by force or by unlawful threat of harm to any
person or property or by unlawful threat to commit any offense or calumny
against any person, shall attempt to influence, intimidate, or hinder any of
the following persons:
(1) The victim of a crime or delinquent act in the filing or prosecution of
criminal charges or a delinquent child action or proceeding;
(2) A witness to a criminal or delinquent act by reason of the person being
a witness to that act;
(3) An attorney by reason of the attorney's involvement in any criminal or
delinquent child action or proceeding.
***
(D) Whoever violates this section is guilty of intimidation of an attorney,
victim, or witness in a criminal case. A violation of division (A) of this
section is a misdemeanor of the first degree. A violation of division (B) of
this section is a felony of the third degree.
{¶16} The court found Sessler guilty of the felony offense, even though the
verdict form did not state the degree of the offense, the statutory section upon which the
jury found him guilty, or refer to the use of force or threat of harm. Sessler I at ¶ 13.
Under Pelfrey, the court found that Sessler could only be found guilty of the least
offense, a first-degree misdemeanor under R.C. 2921.04(A), because the form did “not
permit a determination as to which degree of offense Sessler [was] guilty of committing.”
Id. See also, State v. Gregory, 3rd Dist. Hardin No. 6-12-02, 2013-Ohio-853, ¶ 24
(finding that a verdict form’s reference in the caption to the statutory section of the
charged offense does not satisfy R.C. 29445.75(A)(2)).
{¶17} Here, the jury found Jones guilty of illegal conveyance in violation of R.C.
2921.36(A)(2). Under R.C. 2921.36(G)(2), a violation of subsection (A)(2) can only
result in a third-degree felony conviction. There are no aggravating elements necessary
to enhance the penalty. As the court in Kepiro I and III indicated, the statutes in
Adams App. No. 13CA960 9
Sessler are distinctly different than the statutes at issue in Kepiro and here. The illegal
conveyance statute creates several separate types of prohibited conduct with each type
constituting a separate offense bearing a separate penalty. There are no additional
elements or attendant circumstances that change or enhance the penalties for each
individual offense. See Kepiro III at ¶s 15-17. The statute in Sessler contains an
additional document that alters the penalty of the basis offense. Id at ¶ 19. That is not
the case here.
{¶18} Nor are we confronted with a situation and statute like those in State v.
McDonald, ---- Ohio St.3d ----, 2013-Ohio-5042. The statute prohibiting the failure to
comply with an order or signal of a police officer, R.C. 2921.331, contains two separate
violations in separate subsections of the statute, one a misdemeanor and one a felony.
The jury’s verdict form was sufficient only to charge the misdemeanor version even
though it contained some enhancing language from the felony version. Because the
verdict form did not contain all the elements necessary for the felony version, R.C.
2945.75(A)(2) required a conviction for the least degree of the offense, i.e. a
misdemeanor. No similar problem exists here.
IV. CONCLUSION
{¶19} Therefore, Sessler and Pelfrey are inapplicable and the jury’s verdict form
was sufficient to convict Jones of a third-degree felony. Accordingly, we overrule her
sole assignment of error and affirm her conviction.
JUDGMENT AFFIRMED.
Adams App. No. 13CA960 10
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams
County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
Abele, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.