State v. McDonald

• Decision Date: 20 November 2013
• Docket Number: No. 2012–1177.,2012–1177.
• Citation: 1 N.E.3d 374,137 Ohio St.3d 517
• Parties: The State of OHIO, Appellee, v. McDONALD, Appellant.
• Court: Ohio Supreme Court

137 Ohio St.3d 517

1 N.E.3d 374

The State of OHIO, Appellee,

v.McDONALD, Appellant.

No. 2012–1177.

Supreme Court of Ohio.

Submitted March 13, 2013.

Decided Nov. 20, 2013.

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, Columbus, for appellant.

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 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:

(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 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.

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 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 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...