State v. Barnette

[Cite as State v. Barnette, 2014-Ohio-5405.]

STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO, )
) CASE NO. 13 MA 183
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DON BARNETTE, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas
Court, Case No. 13CR164.

JUDGMENT: Conviction of First Degree Felony
Vacated; Remanded for Resentencing
for Conviction of Second Degree Felony.

APPEARANCES:
For Plaintiff-Appellee: Attorney Paul Gains
Prosecuting Attorney
Attorney Ralph Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503

For Defendant-Appellant: Attorney Timothy Young
Ohio Public Defender
Attorney Peter Galyardt
Assistant State Public Defender
250 East Broad Street, Suite 1400
Columbus, Ohio 43215

JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Cheryl L. Waite

Dated: December 5, 2014
[Cite as State v. Barnette, 2014-Ohio-5405.]
VUKOVICH, J.

{¶1} Defendant-appellant Don Barnette appeals from the decision of the
Mahoning County Common Pleas Court entering a conviction against him for
felonious assault, a violation of R.C. 2903.11(A)(2)(D), a first-degree felony. The
state and Barnette agree that the jury verdict form did not comply with R.C. 2945.75
because neither the degree of the offense or the aggravating element that the victim
was a peace officer was identified on the verdict form. The issue in this case is
whether a plain error analysis applies to that error or must there be strict compliance
with the statutory mandates in R.C. 2945.75(A)(2).
{¶2} After reviewing the facts of this case, the relevant case law, and the
language of R.C. 2945.75, we hold that there must be strict compliance with R.C.
2945.75. In reaching this conclusion, we acknowledge that the three leading Ohio
Supreme Court cases – Pelfrey, Eafford, and McDonald – offer somewhat conflicting
guidance on whether a plain error analysis can apply or if there must be strict
compliance with the statutory mandates; the Pelfrey and McDonald Courts required
strict compliance with R.C. 2945.75, while the Eafford Court applied a plain error
analysis. Considering that McDonald is the Ohio Supreme Court’s latest ruling on
R.C. 2945.75 and that the facts of this case are akin to the facts in Pelfrey and
McDonald, and distinguishable from Eafford, we will follow the mandates of Pelfrey
and McDonald. Thus, the judgment of the trial court regarding Barnette’s conviction
for first-degree felony felonious assault is vacated and the matter is remanded to the
trial court with instructions for it to enter a judgment convicting Barnette of felonious
assault as a second degree felony and to sentence him accordingly.
Statement of the Facts and Case
{¶3} On February 28, 2013, Barnette was indicted for one count of felonious
assault in violation of R.C. 2903.11(A)(2)(D). This offense was elevated from a
second-degree felony to a first-degree felony because the victim was a peace officer.
R.C. 2903.11(D). He was also indicted for one count of receiving stolen property in
violation of R.C. 2913.51(A)(C), a fourth-degree felony. However, that charge was
later dismissed. 11/20/13 Dismissal.
 -2-

{¶4} The basis for the first-degree felony felonious assault charge is that
Barnette drove a green 2001 Ford Expedition into Officer Dorothy Johnson’s cruiser
on February 1, 2013. On that day, Detective Sergeant Vitullo and Officer Ward were
patrolling the Youngstown Metropolitan Housing Authority within the city of
Youngstown, Mahoning County, Ohio. Tr. 222. The officers saw the green 2001
Ford Expedition in the area of Victor and Atkinson Avenues and ran the license plate,
which indicated that the vehicle was stolen. Tr. 223. Thus, the officers activated the
overhead lights and sirens and attempted to initiate a stop. Tr. 224. However,
instead of stopping the vehicle, Barnette accelerated and an active pursuit ensued.
Tr. 225. Barnette accelerated to almost 70 miles per hour and passed other vehicles
in a residential area. Tr. 225. After 30 seconds, Detective Sergeant Vitullo
determined that the pursuit was too dangerous and disengaged. Tr. 226.
{¶5} Officer Dorothy Johnson, of the Youngstown Police Department patrol
division, was patrolling that day on the east side of Youngstown and heard of the
pursuit on her police radio. Tr. 237. Thus, she began heading in the direction of their
location to offer assistance. Tr. 239. While traveling northbound on Landsdowne
Avenue she then heard that the officers had terminated the pursuit. Tr. 240-241.
Within a few minutes she observed Barnette traveling southbound in the northbound
lane, coming in her direction. Tr. 240-241. Barnette saw her patrol car and turned
left onto Nair Avenue; Officer Johnson activated her lights and sirens. Tr. 242.
Barnette then drove into a parking lot at the intersection of McGuffey and Jacobs
Roads and stopped. Tr. 242-243. Officer Johnson entered that lot, stopped her
vehicle, and attempted to open her door so that she could get out of the car and
approach Barnette’s vehicle. Tr. 243. Barnette accelerated his vehicle and hit
Officer Johnson’s cruiser. Tr. 243. Barnette then maneuvered his vehicle around her
cruiser and fled via Jacobs Road. Tr. 243. Officer Johnson continued to pursue
Barnette. Tr. 244. After crossing McKelvey Lake, Barnette lost control of his vehicle
and crashed into a pole. Tr. 244. His vehicle bounced back into the road and struck
Officer Johnson’s cruiser on the passenger side. Tr. 245. This was in the area of
Beachwood Estates in Mahoning County, Ohio; Barnette’s vehicle was still operable
 -3-

and he drove into Beachwood Estates. Tr. 246. Officer Johnson used her cruiser to
block him in a cul-de-sac. Tr. 246. In attempting to exit the blocked cul-de-sac,
Barnette once again hit Officer Johnson’s cruiser. Tr. 246-247. After that crash, he
attempted to flee on foot. Tr. 247-248.
{¶6} Two officers witnessed Barnette purposely drive his vehicle into Officer
Johnson’s cruiser in Beachwood Estates. Officer Martini heard on the radio that
Officer Johnson was following Barnette’s vehicle and responded to the area of
Beachwood Estates. Tr. 293-295. He witnessed Barnette strike Johnson’s cruiser in
Beachwood Estates. Tr. 295. Likewise, Officer Rutland also responded to the
Beachwood Estates area and witnessed Barnette’s vehicle strike Officer Johnson’s
cruiser in the cul-de-sac. Tr. 335. Officer Rutland apprehended Barnette while he
was fleeing on foot. Tr. 296, 336.
{¶7} Officer Johnson sustained injuries from the above incidents. Tr. 251.
She had a concussion, a back injury, a neck injury and some nerve damage to her
hip. Tr. 251.
{¶8} Following discovery the case proceeded to trial before a jury on the sole
charge of felonious assault, a first-degree felony. Following deliberations, the jury
found him guilty. The verdict form presented to the jury stated:
We, the jury, in the aforementioned case, duly paneled and
sworn, find the Defendant DON BARNETTE * ______________, of the
crime of FELONIOUS ASSAULT, a violation of ORC §2903.11(A)(2)(D).
{¶9} “Guilty” was written onto the blank line and all twelve jurors signed the
verdict form. 11/20/13 Verdict Form. Barnette did not object to the wording of the
verdict form.
{¶10} Sentencing occurred on November 21, 2013. The trial court imposed
an eight year sentence. 11/22/13 J.E. Barnette timely appeals from the conviction
and sentence.

Assignment of Error
 -4-

{¶11} “The trial court violated Don Barnette’s constitutional rights and
committed plain error when it entered a conviction against him for first-degree felony
felonious assault after it failed to provide the jury with a verdict form that identified the
degree of the offense or the aggravating element that the victim was a peace officer.”
{¶12} R.C. 2945.75 states:
(A) When the presence of one or more additional elements
makes an offense one of more serious degree:
(1) The affidavit, complaint, indictment, or information either shall
state the degree of the offense which the accused is alleged to have
committed, or shall allege such additional element or elements.
Otherwise, such affidavit, complaint, indictment, or information is
effective to charge only the least degree of the offense.
(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.
R.C. 2945.75(A).
{¶13} Here, Barnette was charged with felonious assault in violation of R.C.
2903.11(A)(2)(D). These provisions provide:
(A) No person shall knowingly do either of the following:
***
(2) Cause or attempt to cause physical harm to another or to
another's unborn by means of a deadly weapon or dangerous
ordnance.
***
(D)(1)(a) Whoever violates this section is guilty of felonious
assault. Except as otherwise provided in this division or division
(D)(1)(b) of this section, felonious assault is a felony of the second
degree. If the victim of a violation of division (A) of this section is a
 -5-

peace officer or an investigator of the bureau of criminal identification
and investigation, felonious assault is a felony of the first degree.
(b) Regardless of whether the felonious assault is a felony of the
first or second degree under division (D)(1)(a) of this section, if the
offender also is convicted of or pleads guilty to a specification as
described in section 2941.1423 of the Revised Code that was included
in the indictment, count in the indictment, or information charging the
offense, except as otherwise provided in this division or unless a longer
prison term is required under any other provision of law, the court shall
sentence the offender to a mandatory prison term as provided in
division (B)(8) of section 2929.14 of the Revised Code. If the victim of
the offense is a peace officer or an investigator of the bureau of criminal
identification and investigation, and if the victim suffered serious
physical harm as a result of the commission of the offense, felonious
assault is a felony of the first degree, and the court, pursuant to division
(F) of section 2929.13 of the Revised Code, shall impose as a
mandatory prison term one of the prison terms prescribed for a felony of
the first degree.
R.C. 2903.11(A)(2)(D).
{¶14} The indictment specifically indicated that the felonious assault charge
was a first-degree felony and that the victim was Peace Officer Dorothy Johnson.
{¶15} Barnette contends that the jury verdict form did not comply with R.C.
2945.75 because the form does not state the degree of the offense nor does it state
the additional element that is necessary to elevate the degree of the offense.
Barnette acknowledges that he did not object to the language of the form, but
contends that under the analysis used in the Ohio Supreme Court’s decisions in
Pelfrey and McDonald the failure to strictly comply with R.C. 2945.75(A)(2) means his
conviction for the first-degree felony cannot stand and that the most he could be
convicted of is a second-degree felony.
 -6-

{¶16} The state responds by focusing on the fact that Barnette did not object
to the jury verdict forms; it implicitly concedes that the form does not comply with
R.C. 2945.75(A)(2). Accordingly, it contends that Barnette can only raise plain error.
Under a plain error analysis, the state asserts that the failure to comply with R.C.
2945.75 does not rise to the level of plain error based on the Ohio Supreme Court’s
decision in Eafford. It asserts that Eafford is controlling, not Pelfrey and McDonald.
{¶17} Barnette filed a reply brief to address the state’s argument that Eafford
controls. In that brief, he contends that Eafford is distinguishable and is only
applicable in drug cases. He maintains that Pelfrey and McDonald are controlling.
{¶18} As can be seen, the parties’ arguments involve the application of three
different Ohio Supreme Court cases. Thus, the analysis proceeds with a discussion
of those three cases.
{¶19} Pelfrey was certified to the Ohio Supreme Court and the issue
presented to it was: “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.” State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, ¶ 1.
The Court answered this question in the affirmative. Id.
{¶20} In Pelfrey, Pelfrey was charged with tampering with records and the
degree of the offense was elevated to a third-degree felony because the records
were government records. Id. at ¶ 3. The jury verdict form did not mention the
degree of Pelfrey’s offense or that the records involved were government records. Id.
at ¶ 13. Despite the fact that Pelfrey did not object to the verdict form, the Ohio
Supreme Court found that based on the language in R.C. 2945.75(A)(2) Pelfrey
could only be convicted of a misdemeanor offense, which was the least degree under
R.C. 2913.42(B) of the offense of tampering with records. Id. at ¶ 13, 17 (paragraph
 -7-

17 is from the dissent and indicates that Pelfrey did not object to the form). The
Court explained:
Because the language of R.C. 2945.75(A)(2) is clear, this court
will not excuse the failure to comply with the statute or uphold Pelfrey's
conviction based on additional circumstances such as those present in
this case. The express requirement of the statute cannot be fulfilled by
demonstrating additional circumstances, such as that 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, or by showing that
the defendant failed to raise the issue of the inadequacy of the verdict
form. We hold that pursuant 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 ¶ 14.
{¶21} The Pelfrey majority does not indicate that it is applying a plain error
analysis; there is no discussion of plain error in the opinion. However, the dissent
does discuss plain error and concludes that but for the trial court’s failure to comply
with R.C. 2945.75(A)(2), the outcome of Pelfrey’s trial would not have been different;
“the jury found him guilty of tampering with records, and no question exists that the
records involved belonged to a local, state, or federal governmental entity.” Id. at ¶
31-33 (O’Donnell, J., dissenting). Thus, the dissent would have found that the error
did not rise to the level of plain error and would have affirmed the conviction for the
greater offense.
{¶22} In 2011, the Eighth Appellate District strictly applied the Pelfrey holding
in a possession of cocaine case. State v. Eafford, 8th Dist. No. 94718, 2011-Ohio-
927. In that case, Eafford was charged with possession of cocaine in the amount less
than 5 grams a violation of R.C. 2925.11(A), a fifth-degree felony. The jury verdict
 -8-

form, as to this charge, stated that Eafford was “guilty of Possession of Drugs in
violation of § 2925.11(A) of the Ohio Revised Code, as charged in Count Two of the
indictment.” The Eighth Appellate District found that that language did not comply
with R.C. 2945.75(A)(2). It further stated that the “as charged in the indictment”
language in the verdict form did not cure the defect, even though the degree of the
offense was included in the indictment. Id. at ¶ 41. Therefore, it concluded that
Eafford was improperly sentenced. Id. The appellate court modified his conviction
on the possession of drugs charge from a third-degree felony to a third-degree
misdemeanor and remanded the matter to the trial court for resentencing. Id. at ¶ 2,
45, 47.
{¶23} The state appealed that decision to the Ohio Supreme Court, which
reversed the appellate court’s decision and reinstated the original sentence. State v.
Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891. In reaching this
conclusion, the Court engaged in a plain error analysis since Eafford did not object to
the jury verdict forms. Id. at ¶ 11. The Court set forth the statute on possession of
controlled substances, R.C. 2925.11 and quoted R.C. 2945.75. Id. at ¶ 13-15, 16.
Considering those statutes and applying a plain error analysis, the Court concluded
that the jury verdict form did not affect the outcome of the trial:
Count Two of the indictment alleged that Eafford possessed
cocaine, expert testimony confirmed that the substance at issue tested
positive for cocaine, and throughout the trial the parties and the court
treated the phrase “possession of drugs” as synonymous with
possession of cocaine. Further, in its jury instructions—a copy of which
the court submitted to jurors who had it in the deliberating room during
deliberations—the trial court explained to the jury that it could not find
Eafford guilty of possession of drugs as charged in Count Two unless it
found the drug involved to be cocaine or a compound, mixture,
preparation, or substance containing cocaine. And, as we observed in
State v. Johnson, 71 Ohio St.3d 332, 340, 643 N.E.2d 1098 (1994),
“[j]uries are presumed to follow the court's instructions.” Thus, when
 -9-

the jury found Eafford guilty as charged in Count Two of the indictment,
its finding necessarily related to possession of cocaine.
Eafford therefore failed to demonstrate that the trial court
committed plain error in these circumstances. The verdict form used
the phrase “possession of drugs” but did not ask jurors to specify
whether the drug involved in this case was or was not cocaine. The
jurors found Eafford “guilty of Possession of Drugs in violation of §
2925.11(A) of the Ohio Revised Code, as charged in Count Two of the
indictment.” The finding in the verdict cannot be described as error, let
alone an obvious defect in the trial proceedings, and it did not affect
Eafford's substantial rights. He knew from the outset that the state
intended to prove his guilt of possession of cocaine. And it did. The
form of the jury verdict did not affect the outcome of the trial. The state
intended to prove the accused guilty of possession of cocaine, it did so,
and the jury in accordance with its findings rendered a verdict in
conformity with the evidence presented by the state that Eafford
possessed cocaine.
(Emphasis in Original). Id. at ¶ 17-18.
{¶24} Following that decision, appellate courts have tried to reconcile the
Eafford decision with the Pelfrey decision. State v. Perry, 11th Dist. No. 2011-L-125,
2013-Ohio-5803, ¶ 8 (Eafford limited certain provisions of Pelfrey); State v. Randles,
9th Dist. No. 26629, 2013-Ohio-4681, ¶ 6 (reconciling Pelfrey and Eafford by stating
that Pelfrey only “applies when ‘the presence of one or more additional elements
makes an offense one of more serious degree.’”); State v. Sowards, 4th Dist. No.
06CA13, 2013-Ohio-3265, ¶ 6 (Eafford appears to make an exception to Pelfrey
under certain circumstances); State v. Klein, 3d Dist. No. 14-12-09, 2013-Ohio-2387,
94 (stating that Eafford and Pelfrey contradict each other).
{¶25} Then in 2013, the Ohio Supreme Court released its decision in
McDonald. State v. McDonald, 137 Ohio St.3d 517, 2013-Ohio-5042, 1 N.E.3d 374.
 -10-

McDonald, like Pelfrey, was a certified conflict case. The issue presented to the
Court stated:
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. at ¶ 12.
{¶26} In analyzing this question, the Court did not discuss plain error or the
Eafford decision. Rather, it focused on Pelfrey and specifically quoted paragraph 14
of the Pelfrey decision, which included language that the Court would not excuse the
failure to comply with R.C. 2945.75 merely because a defendant failed to object to
the adequacy of the verdict form. Id. at ¶ 17, quoting Pelfrey, 2007-Ohio-256, ¶ 14.
{¶27} The Court then went on to explain that the jury verdict form at issue in
McDonald was deficient because it failed to set forth the degree of the offense and
failed to “sufficiently set forth the elements that led to a felony conviction.” Id. at ¶ 19.
The jury verdict form found McDonald guilty of failing to comply with an order or
signal of a police officer and causing a substantial risk of serious physical harm to
persons or property. The language as to causing a substantial risk of serious
physical harm to persons or property is part of the enhancing element that raises the
offense from a misdemeanor to a third degree felony. The problem with the jury
verdict form in this instance was that the statement that the language “Failure to
Comply with Order or Signal of Police Officer” that was used in the form could apply
to R.C. 2922.331(A), a general failure to comply with the order of a police officer or
R.C. 2921.331(B), the willful flight in a motor vehicle from a police officer. The Court
indicated that only section (B) could be the basis of an enhancement for creating a
substantial risk of injury or damage to property. Id. at ¶ 20.
The 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). If only
one type of failure to comply can lead to a felony, the particular
 -11-

elements of that type of failure to comply constitute one part of R.C.
2945.75's “one or more additional elements [that] make[ ] an offense
one of more serious degree.” The first element of a felony charge
under R.C. 2921.331 is that the failure to comply involved willful elusion
or flight from a police officer. Without that element, there can be no
felony.
Id. at ¶ 22.
{¶28} Since the jury verdict form did not indicate that the elements of section
(B) were implicated the Court concluded that the form did not set forth the additional
elements that enhance the crime of failure to comply from a misdemeanor to a felony.
Id. at ¶ 23. The Court indicated that the verdict form for the misdemeanor offense
and the verdict form for the felony “cannot be identical;” the “felony verdict form—if it
does not state the degree of the offense—must state the elements that distinguish it
from a misdemeanor offense.” Id. at ¶ 24. Thus, since the jury verdict form did not
comply with R.C. 2945.75, the Court found that McDonald could only be convicted of
first-degree misdemeanor failure to comply with the order of a police officer. Id. at ¶
26.
{¶29} The Eighth Appellate District was the first appellate district to try to
reconcile the holdings in Pelfrey, Eafford, and McDonald. State v. Kilbane, 8th Dist.
No. 99485, 2014-Ohio-1228, ¶ 15-18, appeal not accepted, 140 Ohio St.3d 1415,
2014-Ohio-378515 N.E.3d 884. In Kilbane, the appellate court concluded that the
jury verdict form strictly complied with R.C. 2945.75 and also found that any error did
not rise to the level of plain error. Thus, the appellate court engaged in two separate
analyses. The court did this based on the three Ohio Supreme Court decisions. It
stated:
Further, while Pelfrey is the seminal case on the application of
R.C. 2945.75(A)(2), the Ohio Supreme Court has subsequently
provided us with conflicting guidance on this statute. In Pelfrey, despite
the defendant having not raised any issue related to the verdict forms
during the trial court proceedings, the court did not engage in a plain-
 -12-

error analysis. The holding in Pelfrey implies that failure to strictly
comply with R.C. 2945.75(A)(2) always constitutes plain error. Five
years later, however, the Ohio Supreme Court in State v. Eafford, 132
Ohio St.3d 159, 2012–Ohio–2224, 970 N.E.2d 891, reversed this court
for strictly applying Pelfrey to a challenge of a jury verdict form under
R.C. 2945.75(A), and found that the alleged defect in the jury verdict
was not plain error based on other circumstances during the
proceedings. Courts since then, including this court, have been trying
to reconcile the conflicting opinions of Pelfrey and Eafford. See, e.g.,
State v. Melton, 8th Dist. Cuyahoga No. 97675, 2013–Ohio–257
(recognizing a distinction between the plain-error doctrine in Eafford
and Pelfrey ). And while the Ohio Supreme Court arguably abandoned
its reasoning in Eafford in its recent decision of State v. McDonald, 137
Ohio St.3d 517, 2013–Ohio–5042, 1 N.E.3d 374, the court still did not
expressly overrule Eafford, which appears to be binding precedent.
Id. at ¶ 17.
{¶30} We agree with the Eighth Appellate District that the holdings in Pelfrey,
Eafford, and McDonald offer somewhat conflicting guidance on R.C. 2945.75. Are
we to apply a plain error analysis when reviewing the jury verdict forms or are we to
determine if the forms strictly comply with R.C. 2945.75? Both Pelfrey and McDonald
stated the “express requirement of the statute cannot be fulfilled by demonstrating
additional circumstances, such as that 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 or by
showing that the defendant failed to raise the issue of the inadequacy of the verdict
form.” Pelfrey, 2007-Ohio-256 at ¶ 14; McDonald, 2013-Ohio-5042 at ¶ 17. Yet, in
Eafford the Court considered other factors, such as the fact that the indictment was
incorporated into the verdict form, that the issue of inadequacy of the verdict form
was not raised, the evidence at trial, and the jury instruction. It engaged in a plain
error analysis and concluded that Eafford did not show that but for the use of that
 -13-

verdict form, the outcome of the trial would have been different. Eafford, 2012-Ohio-
2224 at ¶ 19.
{¶31} The Eighth Appellate District’s reconciliation of the cases was easy – it
applied both tests. The result of each test was the same in that case – the conviction
and sentence were affirmed. However, we cannot apply both tests because, in this
instance, the different tests lead to different results.
{¶32} Under a strict compliance with the R.C. 2945.75 analysis, the jury
verdict form would fail and the conviction for first-degree felony felonious assault
would have to be vacated and a conviction for second-degree felony felonious
assault would have to be instated. Here, the jury verdict form is deficient because it
does not state the degree of the felony and it does not state the enhancing element.
The form does refer to the statutory section that Barnette is found guilty of, “R.C.
2903.11(A)(2)(D).” However, that reference does not constitute a statement of the
enhancing element. Section (D) specifically indicates that convictions of R.C.
2903.11 are second-degree felonies unless otherwise indicated in that section. That
section then states that if the victim of a violation of section (A) is a peace officer, the
offense is elevated to a first-degree felony. Had the statutory language of section (D)
only referred to the fact that when the victim is a police officer the offense is a first-
degree felony, this court could have concluded that reference to the specific statute
was a statement of the enhancement element. State v. Moore, 7th Dist. No.
12MA197, 2013-Ohio-4000, ¶ 24 (citation in appellant's verdict form to R.C.
2941.145(A) saves the verdict form from a claim that it is deficient – statute cited
contains the three year firearm specification and does not contain any other type of
specification.). In McDonald, the Court clearly indicated that the verdict form for the
greater offense cannot be identical to the verdict form for the lesser offense.
McDonald, 2013-Ohio-5042 at ¶ 24. Here, as the form is written, it would be
identical; this form could be used for the lesser offense. Consequently, there is no
compliance with R.C. 2945.75(A)(2). Thus, under a strict compliance with the R.C.
2945.75 test, reversal would be required.
 -14-

{¶33} Yet, if we apply a plain error analysis, reversal would not be needed.
The indictment clearly charges Barnette with the elevated felonious assault offense. It
not only states that it is a first-degree felony, but also states that the alleged victim is
peace officer Dorothy Johnson of the Youngstown Police Department. 02/28/13
Indictment. Furthermore, the bill of particulars also indicates that the victim is “Officer
Dorothy Johnson of the Youngstown Police Department, a peace officer,” and that
the felonious assault that Barnette is charged with is a first-degree felony. 07/12/13
Bill of Particulars. Officer Johnson testified at trial that she is an officer with the
Youngstown Police Department and three other officers referred to her as “Officer
Johnson.” Tr. 226, 237, 293, 333. Lastly, the jury was instructed that in order to find
Barnette guilty of the charge of felonious assault it had to find beyond a reasonable
doubt that he caused physical harm to “Officer Dorothy Johnson of the Youngstown
Police Department, a peace officer, while in the performance of her official duties.”
Tr. 420-421. The only charge the jury was instructed on was first-degree felony
felonious assault and the only victim to the felonious assault that was mentioned at
trial was Officer Dorothy Johnson. The jury was provided with an instruction on the
statutory definition of peace officer. Tr. 422-426. Thus, in applying a plain error
analysis as was explained under Eafford, all of those factors indicate that the
outcome of the trial would not have been different.
{¶34} The above analyses show two different results. Thus, we cannot
reconcile the Ohio Supreme Court cases – Pelfrey, Eafford and McDonald – in the
manner the Eighth Appellate District did in Kilbane.
{¶35} Since Kilbane two other appellate districts have had the opportunity to
discuss the holdings of Pelfrey, Eafford and McDonald in conjunction with each other.
State v. Wilson, 9th Dist. No. 12CA010263, 2014-Ohio-3182, ¶ 26; State v. Duncan,
3d Dist. No. 8-12-15, 2014-Ohio-2720, ¶ 5-10. Neither case specifically discusses
how to reconcile the holdings. Rather, both gloss over Eafford and apply the
McDonald holding since it is the most recent pronouncement from the Ohio Supreme
Court on R.C. 2945.75. Wilson at ¶ 26; Duncan at ¶ 10.
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{¶36} In this instance, we agree with our sister districts that McDonald is the
applicable holding. We do so not only because McDonald is the most recent decision
from the Ohio Supreme Court on the application of R.C. 2945.75, but also because of
the clear language of the statute, which was the focus of both the McDonald and
Pelfrey decisions.
{¶37} Furthermore, the case before us is distinguishable from Eafford.
Eafford was a drug case that dealt with the identity of the drug and both the state and
Eafford agreed that the identity of the drug was not an enhancing element. The state
in Eafford asserted that the “identity of the drug is an essential, not aggravating,
element of a possession offense and that the lowest degree of possession of cocaine
in R.C. 2925.11 is a fifth-degree felony.” Eafford, 2012-Ohio-2224, at ¶ 8. Thus, the
state asserted that lowering Eafford’s conviction to misdemeanor drug possession
conflicted with the charging document and the evidence at trial. Similarly, Eafford
claimed that the appeal did not require the Ohio Supreme Court to “revisit Pelfrey,
because it does not involve ‘a difference between the level of the offense charged in
the indictment and a lesser version of the same offense reflected in the verdict form.
To the contrary, the problem in this case is that there is a different offense charged in
the indictment than that reflected in the verdict form.” Id. at ¶ 9. In looking at the
parties’ argument and positions, the Ohio Supreme Court in Eafford stated that the
issue it was asked to decide was, “whether a jury-verdict form finding an accused
guilty of possession of drugs as charged in the indictment supports a conviction for
possession of cocaine, when the indictment, the evidence produced at trial, and the
jury instruction all refer only to one drug.” Id. at ¶ 10. Given the arguments and the
issue as formulated by the Ohio Supreme Court, Eafford did not deal with the failure
to include the enhancing element in the verdict form. Consequently, we are of the
opinion that Eafford, at best, is confined to the facts of that case and those facts are
distinguishable from the matter at hand. At worst, Eafford is an anomaly.
{¶38} Therefore, for the above stated reasons, the mandates of McDonald
and Pelfrey are controlling; “the verdict form itself is the only relevant thing to
consider in determining whether the dictates of R.C. 2945.75 have been followed.”
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Pelfrey, 2007-Ohio-256 at ¶ 14; McDonald, 2013-Ohio-5042 at ¶ 17. Here, those
dictates admittedly were not followed. Thus, appellant’s sole assignment of error has
merit. His conviction for first degree felony felonious assault is vacated and the
matter is remanded to the trial court. Upon remand the trial court is instructed to
enter a judgment convicting appellant of felonious assault as a second degree felony
and to sentence him accordingly.

Donofrio, J., concurs.
Waite, J., concurs.