[Cite as State v. Randles, 2013-Ohio-4681.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26629
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
MARK ALLAN RANDLES COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 09 2399
DECISION AND JOURNAL ENTRY
Dated: October 23, 2013
HENSAL, Judge.
{¶1} Mark Randles appeals his sentence for rape from the Summit County common
pleas court. For the following reasons, this Court affirms.
I.
{¶2} The Grand Jury indicted Mr. Randles for one count of rape “in violation of
Section 2907.02(A)(1)(b) of the Ohio Revised Code” and one count of gross sexual imposition.
A jury convicted him of the offenses. At sentencing, the trial court merged the counts and
sentenced him to 25 years to life imprisonment for rape. Mr. Randles has appealed his sentence,
assigning one error.
II.
ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED PLAIN ERROR AS A MATTER OF LAW
IN IMPOSING A SENTENCE OF TWENTY-FIVE YEARS TO LIFE
IMPRISONMENT FOR RAPE, WHERE THE JURY VERDICT ALLOWED A
SENTENCE FOR ONLY THE LEAST DEGREE OF THE OFFENSE.
2
{¶3} Mr. Randles argues that, under the Ohio Supreme Court’s decision in State v.
Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, because the jury’s verdict form did not specifically
state the statutory section that he violated or factual findings that would support a greater-than-
the-minimum sentence, the maximum sentence that the trial court could impose is ten years. In
Pelfrey, the Supreme Court held that, “[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.” Id. at syllabus. The jury’s verdict form in
this case provided that “[w]e, the Jury, * * * do hereby find the Defendant * * * guilty of the
offense of [r]ape. And we do further find the Defendant * * * did purposely compel the victim to
submit by force or threat of force.”
{¶4} This Court recently considered a similar issue in State v. Edwards, 9th Dist.
Lorain No. 12CA010274, 2013-Ohio-3068. In Edwards, the Grand Jury indicted Mr. Edwards
for one count of rape under Section 2907.02(A)(1)(b) and two counts of gross sexual imposition
under Section 2907.05(A)(4), felonies of the third degree. A jury found him guilty of gross
sexual imposition, and the court sentenced him to four years in prison.
{¶5} On appeal, Mr. Edwards argued that, because the jury’s verdict forms did not
include the degree of the offense or any aggravating elements, they were insufficient under
Pelfrey to support his conviction of anything more than felonies of the fourth degree, the least
degree of the offenses. Id. at ¶ 27. This Court noted, however, that, since Pelfrey, the Supreme
Court had decided State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224. Id. at ¶ 31. In
Eafford, the Ohio Supreme Court determined that it was not plain error for the trial court to
sentence Mr. Eafford for possession of cocaine even though the jury’s verdict form indicated that
3
he was merely guilty of “Possession of Drugs.” Id., quoting Eafford at ¶ 18. The Supreme
Court’s decision was based on the fact that the indictment alleged that Mr. Eafford possessed
“cocaine,” expert testimony confirmed that the substance at issue tested positive for cocaine, the
court and parties had treated the phrase “possession of drugs” as synonymous with “possession
of cocaine” throughout the trial, and the court included cocaine as the specific drug at issue in its
instructions. Id., quoting Eafford at ¶ 17. Accordingly, “when the jury found Eafford guilty as
charged in Count Two of the indictment, its finding necessarily related to possession of cocaine.”
Eafford at ¶ 17.
{¶6} Reconciling Pelfrey and Eafford, this Court determined that Pelfrey only “applies
when ‘the presence of one or more additional elements makes an offense one of more serious
degree.’” Id. at ¶ 34, quoting R.C. 2945.75(A). It noted that Section 2907.05(A)(4) provides
that “[n]o person shall have sexual contact with another, not the spouse of the offender * * *
when * * * [t]he other person * * * is less than thirteen years of age, whether or not the offender
knows the age of that person.” Id. at ¶ 35. It also noted that a violation of Section 2907.05(A)(4)
is a felony of the third degree and that “[t]here are no additional elements that will enhance this
offense to a higher degree.’” Id. It further noted that, to obtain a conviction, “the State was
required to prove that Edwards had sexual contact with J.S. for the purpose of sexual arousal or
gratification and that J.S. was under the age of thirteen at the time of the offense.” Id. “Failure
to prove any of these elements would have resulted in an acquittal, not a conviction of a lesser
degree of gross sexual imposition.” Id. This Court, therefore, concluded that Pelfrey did not
apply and that the verdict forms were sufficient to support Mr. Edwards’s convictions as felonies
of the third degree.
4
{¶7} In this case, the jury’s verdict as to “[c]ount 1” was that Mr. Randles was guilty of
the offense of rape. Count one of the indictment charged Mr. Randles with violating “Section
2907.02(A)(1)(b).” Under Section 2907.02(A)(1)(b), “[n]o person shall engage in sexual
conduct with another who is not the spouse of the offender * * * when * * * [t]he other person is
less than thirteen years of age * * *.” The court also instructed the jury that, “in Count One * * *
[b]efore you can find the defendant guilty, you must find beyond a reasonable doubt that * * *
[Mr.] Randles, purposely engaged in sexual conduct with another who is not the spouse of the
defendant when the other person was less than 13 years of age * * *.” That was the only rape
instruction that the jury received.
{¶8} As in Edwards, if the jury did not believe that Mr. Randles engaged in sexual
conduct with the alleged victim or that she was not under thirteen years of age, it would have
resulted in his acquittal, not a finding of guilt. Since the jury’s verdict necessarily included a
finding that the victim was less than 13 years of age, we conclude that his conviction was under
Section 2907.02(A)(1)(b). See Edwards at ¶ 35.
{¶9} If a defendant is found guilty of violating Section 2907.02(A)(1)(b), twenty-five
years to life is the minimum prison sentence that he can receive, unless he was under the age of
16 at the time of the offense. R.C. 2907.02(B); R.C. 2971.03. Unlike the statute at issue in
Pelfrey, the presence of one or more additional elements does not enhance a violation of Section
2907.02(A)(1)(b) to a higher degree. While Section 2907.02 “does contain other subsections, * *
* each has their own separate elements.” Edwards at ¶ 35. Just as we determined in Edwards
with respect to the similarly worded gross-sexual-imposition statute, we conclude that Pelfrey is
inapplicable with respect to violations of Section 2907.02(A)(1)(b). Id. at ¶ 34. Mr. Randles’s
assignment of error is overruled.
5
III.
{¶10} Pelfrey does not apply to a violation of Revised Code Section 2907.02(A)(1)(b).
The judgment of the Summit County common pleas court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
WHITMORE, J.
CONCURS.
6
BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
{¶11} Based on Mr. Randles’ limited argument, I concur in the majority’s judgment.
The issue raised by Mr. Randles is not a State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256,
issue because all forms of rape are first-degree felonies. See R.C. 2907.02(B). Thus, Mr.
Randles’ conviction for rape could only be a first-degree felony. As Mr. Randles has not
developed any argument concerning his sentencing and has limited his argument to the notion
that the verdict form violated Pelfrey, I concur in the majority’s judgment.
APPEARANCES:
JEFFREY N. JAMES, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.