Jury Form Contained Enough Information To Elevate Penalty for Offense

When a completed jury verdict form cites a statute allowing a repeat offender to be charged for a higher level of offense, the form supports a conviction, the Supreme Court of Ohio ruled today.

In a 4-3 ruling, the Supreme Court affirmed the felony conviction of Mario Mays of Lucas County for violating a protection order. The jury’s verdict form cited a section of state law providing that Mays’ offense qualified as a fifth-degree felony-level violation of a protection order rather than a misdemeanor -level violation. However, the form did not specifically state that Mays’ offense was a fifth-degree felony, and did not specify the reasons the jury found the offense to be a fifth-degree felony rather than a misdemeanor.

May appealed his conviction, arguing that under state law, the form either had to explicitly say that the jury found him guilty of a fifth-degree felony or had to state what he specifically did to raise the penalty.

Writing for the Court majority, Justice Patrick F. Fischer wrote that including the Revised Code section in the verdict form was enough to meet the state’s requirements to impose the higher penalty. The decision affirmed a split decision by the Sixth District Court of Appeals.

Chief Justice Sharon L. Kennedy and Justices R. Patrick DeWine and Joseph T. Deters joined the opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote state law specifies what information must be on the jury verdict form to elevate an offense, and it was not included on Mays’ verdict form. She maintained the majority’s ruling amounted to legislating, because it adds words to the law and that the Court cannot “add language where none exists.”

Justices Michael P. Donnelly and Melody Stewart joined Justice Brunner’s dissent.

Man Contests Conviction
Mays’ ex-wife had a protection order in effect preventing Mays from contacting her. He was convicted of violating the order in 2017. In 2020, May was indicted for violating the protection order again, and he contested the charge in Lucas County Common Pleas Court. A jury found Mays guilty of violating a protection order.

The jury’s verdict form stated, “We the jury… for verdict find and say that we find defendant Mario D. Mays … guilty of Count 1, Violating a Protection Order, in violation of R.C. 2919.27 (A)(1) and (B)(3).” A violation of R.C. 2919.27 is a misdemeanor unless the state proves that the offense involved one instance of additional conduct specified in R.C. 2919.27(B). According to R.C. 2919.27(B)(3), one of the factors that can elevate an offense from a misdemeanor to a felony occurs when the offender has previously been convicted of a certain offense. Because Mays had a prior conviction for violating a protection order, the offense increased to a fifth-degree felony.

Mays appealed to the Sixth District Court of Appeals, making several arguments against his conviction, including that the verdict form was insufficient to convict him of the felony. He argued the form contained no required reference to what level of offense he was being charged with or what factors listed in R.C. 2919.27(B)(3) the jury found he committed that justified elevating the offense.

In a 2-1 decision, the Sixth District affirmed Mays’ conviction. The appeals court noted its decision conflicted with a Third District Court of Appeals decision, which found a verdict form with only a reference to the state law is insufficient. The Supreme Court agreed to hear the case and resolve the conflict.

Supreme Court Analyzed Sentencing Laws
R.C. 2945.75(A)(2) is the law governing verdict forms when the presence of one or more acts can raise the level of the crime. The law states, “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 guilt of the least degree of the offense charged.”

Justice Fischer explained the Court had examined R.C. 2945.75(A)(2) in prior cases where a verdict form did not specify the degree of the offense or if the jury found an element necessary to elevate the offense level. In its 2013 State v. McDonald decision, the Court ruled a form without the degree or additional element was insufficient to impose the higher sentence, and the offender had to be sentenced to the lowest offense possible under the law.

However, in McDonald and prior cases, the disputed forms did not contain a reference to a Revised Code section specifying a higher penalty, the opinion noted. Today’s opinion cites a concurring opinion in McDonald, which stated a verdict form would have complied with R.C. 2945.75(A)(2) by citing a code section.

The opinion noted the verdict form indicated Mays’ act was a violation of both R.C. 2919.27 (A)(1) and (B)(3). Section (B)(3) states a violation of a protection order is a fifth-degree felony if one of three possible elements listed in (B)(3)(a), (B)(3)(b), and (B)(3)(c) is met. Section (B)(3)(a) increases the penalty for previously violating a protection order.

Although the verdict form “does not contain the magic words ‘the offense is a felony of the fifth degree,’ we conclude that the verdict form in this case complies with R.C. 2945.75.” the Court stated. The form explicitly states Mays was found guilty of violating section (B)(3), and (B)(3) states the crime is a fifth-degree felony. The form informed Mays he was guilty of a felony, the Court concluded.

Mays argued the form is invalid because it does not specify which of the three ways he violated the law. The Court ruled R.C. 2945.75 requires the form to state “additional element or elements are present” but does not require, as Mays suggests, the form to specify which elements elevated the offense.

Dissent Found Form Lacked Required Information
In her dissent, Justice Brunner maintained the form in Mays’ case must meet one of the two requirements of R.C. 2945.75, and it did not. She wrote that if state lawmakers wanted to allow for the option of referencing a Revised Code section to satisfy that law, they could have added it to the law. “[T]he mere mention” of a code section on a jury verdict form “is simply not the same thing as stating the degree of the offense or requiring the jury to factually find the elevating elements,” Justice Brunner stated.

“We are not the legislature. If that is a wise change, the legislature should make it. We are not empowered to stand in judgment of public policy, nor may we alter or amend it,” the dissent stated.

Because the form was unclear, Mays should be convicted of the lesser offense stated in the form, which is a first-degree misdemeanor, the dissent concluded.

2023-0839. State v. Mays, Slip Opinion No. 2024-Ohio-4616.

View oral argument video of this case.

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