State v. Sims

[Cite as State v. Sims, 

.]

                            IN THE COURT OF APPEALS
                   FIRST APPELLATE DISTRICT OF OHIO
                             HAMILTON COUNTY, OHIO




 STATE OF OHIO,                            :   APPEAL NO. C-230274
                                               TRIAL NO. B-2200312
       Plaintiff-Appellee,                 :
                                                      O P I N I O N.
    vs.                                    :

 BRANDEN SIMS,                             :

       Defendant-Appellant.                :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: December 27, 2023



Melissa A. Powers, Hamilton County Prosecuting Attorney, and Sean M. Donovan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Derek W. Gustafson, for Defendant-Appellant.
                     OHIO FIRST DISTRICT COURT OF APPEALS


KINSLEY, Judge.

       {¶1}   Ohio law criminalizes driving under the influence (“DUI”) in degrees.

First-time offenses are treated as misdemeanors, while habitual drunk driving results

in more serious treatment as a felony. What happens when a jury finds the defendant

guilty of driving while intoxicated, but does not specify that it is convicting the

defendant of the felony version of DUI? Is the defendant guilty of just a misdemeanor?

Or is a stipulation that he had a prior DUI conviction sufficient to replace a specific

jury finding that the defendant committed a felony DUI?           Defendant-appellant

Branden Sims squarely raises these questions in his appeal. Sims stipulated with the

prosecution that he had a prior DUI conviction that, if found by the jury, would have

elevated his misdemeanor DUI charge to a felony. But the jury did not make a finding

of a prior conviction on its verdict form and did not otherwise find him guilty of a

felony DUI.

       {¶2}   For the reasons that follow, we hold that, pursuant to R.C.

2945.75(A)(2), a conviction for DUI under R.C. 4511.19(A)(1)(a) or (A)(2) is a

misdemeanor of the first degree unless the verdict form either contains a factual

finding of a previous felony DUI conviction or specifies that the defendant is guilty of

a third-degree felony. Because the verdict form in Sims’s case did not meet either

standard, the jury necessarily found Sims guilty of a first-degree misdemeanor and not

the third-degree felony for which the trial court sentenced him. We accordingly

reverse Sims’s felony conviction and remand the cause to the trial court with

instructions to enter a judgment of conviction against Sims for a first-degree

misdemeanor and for resentencing in accordance with this opinion.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


                          Factual and Procedural Background

       {¶3}    On January 27, 2022, Sims was indicted on two counts of DUI. The first

count alleged that he drove while under the influence of alcohol and/or drugs in

violation of R.C. 4511.19(A)(1)(a). The second count alleged that Sims operated a

vehicle while under the influence, refused to submit to chemical tests to assess whether

he had drugs and/or alcohol in his system, and had a prior DUI conviction within the

last 20 years. This count was brought under R.C. 4511.19(A)(2). Both counts arose

from a single traffic incident.

       {¶4}    Sims tried his case to a jury. At the beginning of the trial, the prosecutor

read into evidence a stipulation reached by the parties:

        This document is titled “Joint Stipulation of Defendant’s Prior

       Conviction for Felony Violation of ORC 4511.19(A).”

       It reads: State of Ohio versus Branden Sims. Now comes the State of

       Ohio by and through the undersigned assistant prosecuting attorney,

       myself, and the defendant Branden Sims by and through his

       undersigned attorney Mr. Richard Guinan, stipulate that the following

       facts are true beyond a reasonable doubt.

       As of January 9th, 2022, the defendant in this case, Branden Sims, had

       been previously convicted of or pled guilty to a violation of Division A of

       the Ohio Revised Code Section 4511.19 that was a felony in the Hamilton

       County Court of Common Pleas under Case Number B1703351 on

       September 12, 2018.

       {¶5}    A written copy of the stipulation was entered into evidence.

       {¶6}    Deputy James Whitacre of the Hamilton County Sheriff’s Office also

testified. Whitacre indicated that he was on routine patrol in a parking lot when he


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                       OHIO FIRST DISTRICT COURT OF APPEALS


observed Sims make a prohibited right turn. As Whitacre described, he pulled out to

follow Sims, who then made a U-turn. Whitacre followed, turned on his overhead

lights, and added his siren “chirp,” but Sims did not stop. According to Whitacre, Sims

drove through an intersection, waited at a red light, turned into a residential area, and

then pulled into a driveway.

       {¶7}    Whitacre testified that, as Sims then got out of the car, he was unsteady

on his feet and smelled of alcohol. Whitacre further testified that he attempted to

administer a field sobriety test, but Sims was disoriented and could not follow along.

Sims was then placed under arrest and taken to the police station for a breath test.

The machine malfunctioned during the first test, and, as Whitacre relayed, Sims

refused the second test. Whitacre testified that Sims was unable to control his

urination during his interview at the station.

       {¶8}    At the conclusion of the evidence, the jury found Sims guilty of two

counts of DUI. As to count one, the verdict form indicated the jury’s verdict of guilty

under R.C. 4511.19(A)(1)(a). As to count two, the verdict form stated as follows: “We,

the Jury, hereby find the Defendant BRANDEN SIMS GUILTY of OPERATING A

MOTOR VEHICLE UNDER THE INFLUENCE OF ALCOHOL, Ohio Revised Code

R.C. 4511.19(A)(2) as charged in Count Two of the Indictment.” The jury made no

further findings.

       {¶9}    On May 5, 2023, the trial court sentenced Sims to 36 months in prison

on each count and ordered the sentences to be served concurrently. It suspended

Sims’s driver’s license for life.

       {¶10} Sims now appeals.




                                                 4
                      OHIO FIRST DISTRICT COURT OF APPEALS


                        R.C. 2945.75(A)(2) Verdict Form

       {¶11} In his first assignment of error, Sims alleges that the trial court

committed plain error by entering a judgment of conviction on counts one and two as

felonies of the third degree in the absence of a finding by the jury that enhanced his

conviction beyond a first-degree misdemeanor. Sims raises the argument under the

plain error standard because his attorney did not object to either the wording of the

verdict forms or the entry of judgment before the trial court.

       {¶12} R.C. 2945.75(A) provides:

       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.

       {¶13} Over time, the Ohio Supreme Court has strictly construed this statute.

First, in State v. Pelfrey, 

, 

, 

,

the court held that the statute is clear, complete, and imposes no unreasonable burden

on trial courts or attorneys. The court determined that neither the reference to the

indictment in a verdict form nor overwhelming evidence establishing the presence of

an aggravating element could overcome compliance with R.C. 2945.75(A)(2) in the

verdict form. Id. at ¶ 1, 14. Pelfrey had not raised the issue at trial, but the Ohio

Supreme Court reached its merits nonetheless, following the court of appeals’ finding

that the issue was not waived. Id. at ¶ 5, 12. Because the verdict form in Pelfrey’s case


                                                5
                     OHIO FIRST DISTRICT COURT OF APPEALS


did not state an aggravating factor or that the jury was convicting him of a felony

offense, the court accordingly reversed Pelfrey’s felony conviction and remanded the

matter for entry of a misdemeanor conviction in accordance with the statute. Id. at ¶

15.

       {¶14} Next, the Ohio Supreme Court considered the jury’s failure to determine

which drug a defendant possessed, and thus the level of the offense, in its verdict form

in State v. Eafford, 

, 

, 

. In Eafford,

the indictment charged the defendant with possession of cocaine, and the trial court

instructed the jury that it could only convict the defendant if it determined he had in

fact possessed cocaine. Id. at ¶ 2. Under these circumstances, the Ohio Supreme Court

determined that convicting the defendant of a felony rather than a misdemeanor was

not plain error, even though the verdict form failed to specify the level of the offense

or an aggravating factor for misdemeanor drug possession. Id. at ¶ 17-18. Departing

from Pelfrey, the court held that more stringent plain error review was required

because Eafford had not raised the verdict form issue below. Id. at ¶ 11.

       {¶15} Pelfrey and Eafford are admittedly difficult to square, because they

reach opposite conclusions about both the universe of material to consider in applying

R.C. 2945.75(A)(2) and the role of plain error review in assessing alleged errors under

the statute. On the one hand, Pelfrey suggests that strict compliance with the statute

is required and that reference to the indictment or other sources of information

beyond the verdict form cannot be used to elevate a misdemeanor to a felony where

the jury did not explicitly make the required findings. Pelfrey at ¶ 1, 14. On the other

hand, Eafford strikes a more permissive approach, considering reference to both the

indictment and the jury instructions in determining compliance with R.C.




                                               6
                      OHIO FIRST DISTRICT COURT OF APPEALS


2945.75(A)(2). Eafford at ¶ 17-18. Eafford mandates plain error review. Eafford at ¶

11. Pelfrey does not. Pelfrey at ¶ 5, 12.

       {¶16} To the extent Pelfrey and Eafford conflict, however, the Ohio Supreme

Court conclusively resolved all confusion in State v. McDonald, 

,

, 

. In returning to a strict compliance framework in all

cases involving R.C. 2945.75(A)(2), the McDonald court emphasized several key

points about the statute. First, “the verdict form itself is the only relevant thing to

consider in determining whether the dictates of R.C. 2945.75 have been followed.” Id.

at ¶ 17. Outside materials like an indictment, jury instructions, or the evidence in the

case are not relevant to determining whether the jury found the defendant guilty of a

misdemeanor or a felony. Id. Second, for a jury to convict a defendant of the felony

version of an offense that also has a misdemeanor counterpart, the jury cannot use an

identical verdict form. “That verdict form and a verdict form supporting a felony

cannot be identical; a 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. Third, strict compliance with R.C. 2945.75(A)(2) is required. Id. at ¶ 14. This

means that we need not engage in plain error review when a defendant who failed to

object below alleges on appeal that he was improperly convicted of a felony offense

absent a verdict form that complies with the mandates of R.C. 2945.75(A)(2).

       {¶17} This court explicitly stated as much in State v. Johnson, 

,

, ¶ 12 (1st Dist.). In Johnson, we rejected the state’s argument that a

“court may scrutinize the text of the indictment itself and whether it had been

incorporated into the verdict form, the bill of particulars, and the evidence adduced at

trial to determine if the jury had rendered a verdict in conformity with R.C. 2945.75.”

Id. at ¶ 12, 14. Instead, we held that the verdict form itself must contain either the


                                               7
                      OHIO FIRST DISTRICT COURT OF APPEALS


degree of the offense or a statement that the jury found an aggravating element to

enable the trial court to enter judgment beyond the base statutory offense level. Id. at

¶ 14. This court has therefore followed the McDonald framework.

       {¶18} Applying that law to this case, it is clear that the jury did not convict

Sims of a felony in either count one or count two. We initially reject Sims’s position

that he must demonstrate plain error, given that strict compliance with R.C.

2945.75(A)(2) is required. Johnson at ¶ 12. We assess whether the verdict forms at

Sims’s trial strictly complied with the statute and hold they did not.

       {¶19} In count one, Sims was charged with DUI in violation of R.C.

4511.19(A)(1)(a). This offense is generally a misdemeanor of the first degree. See State

v. Savola, 

, 

, ¶ 8 (8th Dist.). However, under R.C.

4511.19(G)(1)(e), the offense can become a felony of the third degree if the defendant

has been previously convicted of another felony DUI. The state concedes that the jury

neither made a finding that Sims had a previous felony DUI conviction nor convicted

him of a third-degree felony on the verdict form. Thus, the state concedes an error

under R.C. 2945.75(A)(2) as to count one. We thus reverse Sims’s conviction for a

third-degree felony under count one, as Sims could only be convicted of a first-degree

misdemeanor for violating R.C. 4511.19(A)(1)(a).

       {¶20} With regard to count two, Sims was charged with DUI in violation of

R.C. 4511.19(A)(2). This provision criminalizes driving under the influence within 20

years of a prior DUI conviction. Initial convictions under R.C. 4511.19(A)(2) are first-

degree misdemeanors. See R.C. 4511.19(G)(1)(a). However, a conviction becomes a

felony of the third degree if a defendant has been previously convicted of a felony DUI.

See R.C. 4511.19(G)(1)(e).




                                               8
                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶21} Here, Sims and the state stipulated to such a conviction. The prosecutor

read the stipulation into the record, and the written document was entered into

evidence. But the verdict form did not contain a jury finding as to Sims’s prior

conviction, nor did it explicitly find Sims guilty of the third-degree-felony form of the

offense under R.C. 4511.19(G)(1)(e).

       {¶22} Unlike its approach as to count one, the state advances a number of

arguments to overcome the absence of these required findings. First, the state

contends that the stipulation fills in the gaps in the jury’s finding. Because the parties

agreed that Sims had previously been convicted of a felony DUI, the state contends

that the aggravating statutory element was met and need not be specifically found by

the jury in its verdict form.

       {¶23} There are several problems with this argument.              For one thing,

McDonald and Johnson are clear that we cannot look outside the verdict form itself to

assess compliance with R.C. 2945.75(A)(2). To this end, the verdict form is the only

thing that matters. That form’s silence as to Sims’s prior felony DUI conviction cannot

be undone by reference to the stipulation. Moreover, because a defendant is entitled

to a jury finding as to elements that aggravate the level of felony, merely stipulating to

a fact cannot supplant the important role the jury’s determination plays in assessing a

defendant’s innocence or guilt. See, e.g., State v. Foster, 

, 2006-Ohio-

856, 

.

       {¶24} In arguing otherwise, both the state and the dissent look to the Eighth

District’s opinion in State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 

,

appeal not accepted, 

, 

, 

, to support

consideration of material outside the jury’s verdict form. But Kilbane is both factually

and legally inapposite. The defendant in Kilbane was convicted of two counts of third-


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                      OHIO FIRST DISTRICT COURT OF APPEALS


degree felony DUI under R.C. 4511.19(A)(1)(a) and (A)(1)(d), both of which require

proof of a prior felony DUI conviction. Id. at ¶ 2, 7. In reaching its verdict, the jury

made a factual finding on each count that Kilbane had previously been convicted of

DUI, citing both the case number and date of the prior conviction on the verdict form.

Id. at ¶ 7, 16. On appeal, Kilbane argued these findings were insufficient under R.C.

2945.75(A)(2) because they omitted the word “felony,” and a prior felony DUI

conviction is required to enhance a current conviction from a misdemeanor to a third-

degree felony. Id. at ¶ 8. Thus, unlike the appeal before us, the legal question in

Kilbane was not whether the jury made the required factual finding in the first place,

but what the factual finding made by the jury actually meant.

       {¶25} In rejecting Kilbane’s insufficiency argument, the Eighth District held

that the verdict forms, standing alone, complied with R.C. 2945.75(A)(2), noting: “The

verdict forms at issue contain ‘further findings’ that expressly required the jury to find

that the aggravating element was present.” Id. at ¶ 16. It further construed the

reference in the verdict forms to the felony DUI’s case number as synonymous with

the term “felony.” Id. In resolving the question on appeal as to what the jury meant

by its factual finding, the court in Kilbane consulted materials beyond the verdict form,

including the jury instructions and Kilbane’s lack of an objection as to the felony

nature of his prior conviction. Id. But it did so only to the extent necessary to

understand what the jury found in its verdict, not to otherwise fill in the absence of a

factual finding. As a result, we do not read Kilbane to endorse review of information

outside the verdict form where, as here, the jury has made no factual finding at all,

although such outside consultation may be appropriate when determining the

adequacy of an existing jury finding.




                                               10
                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶26} Next, the state argues that the language of R.C. 4511.19(A)(2) contains

the aggravating element and that the jury therefore need not find any additional

element to convict Sims of a third-degree felony. This is not a plausible reading of the

law. While the (A)(2) subsection does generally require a prior conviction, a general

violation of R.C. 4511.19(A)(2) is still a first-degree misdemeanor.             See R.C.

4511.19(G)(1)(a). In other words, the statute is not self-aggravating, as the state

contends. Rather, the state must prove a specific prior conviction in order to enhance

the base level of conviction from a misdemeanor to a felony.              See, e.g., R.C.

4511.19(G)(1)(e) (elevating a violation of R.C. 4511.19(A)(2) from a misdemeanor to a

felony where defendant has previously been convicted of a felony DUI).

       {¶27} Thus, applying McDonald, Johnson, and R.C. 2945.75(A)(2), the jury’s

verdict form as to count two did not strictly comply with the statute. It failed to contain

the aggravating element of a prior felony DUI conviction under R.C. 4511.19(G)(1)(e),

and it did not otherwise indicate that the jury was convicting Sims of a third-degree

felony. As a result, under R.C. 2945.75(A)(2), Sims could only be convicted of a first-

degree misdemeanor, the base level of offense for DUI violations under the statute

with which he was charged in count two. We accordingly reverse his felony conviction

and remand the matter to the trial court for entry of a first-degree misdemeanor

conviction under R.C. 4511.19(G)(1)(a).

       {¶28} We agree with the dissent that the application of R.C. 2945.75(A)(2) and

McDonald to a case where the defendant’s prior DUI conviction was not in doubt may

seem unsatisfying.    Nonetheless, we are bound to follow the clear precedent of

McDonald and Johnson that it is the verdict form—and the verdict form alone—that

counts in determining a jury’s findings. And we are also cognizant of a defendant’s

Sixth Amendment right to a jury finding on elements that elevate a sentence, an


                                                11
                      OHIO FIRST DISTRICT COURT OF APPEALS


important principle at play here in addition to a defendant’s statutory rights under

R.C. 2945.75. See, e.g., Apprendi v. New Jersey, 

, 

, 

 (2000); McDonald, 

, 

, 

 (Lanzinger, J., concurring). Sims invoked his right to a jury trial, and that

includes the right to a jury finding of his prior conviction, with or without a stipulation.

       {¶29} Because the jury’s verdict form in Sims’s case convicted Sims of the

misdemeanor version of DUI for both counts one and two, the trial court could only

enter judgment as to a first-degree misdemeanor on both counts. Sims’s felony

convictions on counts one and two are accordingly reversed, and this cause is

remanded to the trial court with instructions to amend its judgment to reflect that

Sims is guilty of first-degree misdemeanor on each count. The first assignment of

error is accordingly sustained.

                                    Allied Offenses

       {¶30} In his second assignment of error, Sims first contends that the trial

court committed plain error by failing to merge counts one and two, which he argues

are allied offenses, at sentencing. The state concedes the error.

       {¶31} Pursuant to State v. Ruff, 

, 

, 

, offenses are not allied offenses of similar import if the answer to any one of

the following questions is in the affirmative: “(1) Were the offenses dissimilar in

import or significance? (2) Were they committed separately? and (3) Were they

committed with separate animus or motivation?” Separate convictions with separate

sentences are permitted if the court affirmatively answers any of the three

questions. See State v. Zeigler, 

, 

 (1st Dist.).

       {¶32} Sims’s two counts of driving under the influence were not dissimilar in

import or significance, were not committed separately, and did not have a separate


                                                12
                      OHIO FIRST DISTRICT COURT OF APPEALS


animus or motivation.      As the state concedes, Sims could accordingly only be

sentenced for one count of DUI. The trial court committed plain error by sentencing

him on both counts.

       {¶33} We therefore sustain this portion of Sims’ second assignment of error

and remand the matter for resentencing on one, but not both counts, of first-degree

misdemeanor DUI. On remand, the state should elect a count on which to proceed at

sentencing.

                        Ineffective Assistance of Counsel

       {¶34} Sims also alleges in his second assignment of error that his trial attorney

was ineffective for failing to object to the imposition of sentences on both counts.

Because we find plain error in the trial court’s failure to merge the counts, this issue is

moot, and we do not address it.

                                      Conclusion

       {¶35} Because the jury’s verdict form did not contain either the level of the

offense or a finding of a prior felony DUI conviction, Sims could only be convicted of

first-degree misdemeanors under R.C. 2945.75(A)(2). We therefore reverse Sims’s

felony DUI convictions and remand the matter to the trial court to enter judgment and

resentence Sims accordingly. We similarly reverse Sims’s sentences as to counts one

and two, which are allied offenses that should have merged at sentencing. On remand,

the state should elect a count on which to proceed at sentencing.


                                               Judgment reversed and cause remanded.


CROUSE, P.J., concurs.
WINKLER, J., concurs in part and dissents in part.




                                                13
                      OHIO FIRST DISTRICT COURT OF APPEALS


WINKLER, J., concurring in part and dissenting in part,

       {¶36} This case illustrates the ongoing struggle for litigants and appellate

courts in applying R.C. 2945.75(A)(2) and the Ohio Supreme Court cases interpreting

it. The majority’s holding that the trial court failed to comply with R.C. 2945.75(A)(2)

in this case leads to an inequitable result and stands in direct conflict with another

Ohio appellate case relied upon by the state, State v. Kilbane, 8th Dist. Cuyahoga No.

99485, 

, appeal not accepted, 

, 

,

. Ultimately, I would follow Kilbane in this case and hold that the trial

court did not err under R.C. 2945.75(A)(2) in convicting Sims of a third-degree felony

OVI. I would also certify a conflict between the decision reached by the majority in

this case and Kilbane to the Ohio Supreme Court under Article IV, Section 3(B)(4) of

the Ohio Constitution.

       {¶37} The Ohio Supreme Court confronted R.C. 2945.75(A)(2) in a series of

cases: State v. Pelfrey, 

, 

, 

, State v.

Eafford, 

, 

, 

, and State v.

McDonald, 

, 

, 

. In Pelfrey, the court

seemed to suggest that a trial court must strictly comply with R.C. 2945.75(A)(2), and

that the failure to strictly comply with the statute will result in per se reversible error,

even where the defendant fails to object to the verdict form. In Eafford, the court

reviewed the trial court’s noncompliance with R.C. 2945.75(A)(2) for plain error under

Crim.R. 52(B)—a standard much more familiar to appellate courts. Notably, the

Eafford opinion never cites to Pelfrey or makes any attempt to distinguish it. Finally,

in McDonald, the court relies on Pelfrey and seems to readopt the view that R.C.

2945.75(A)(2) requires strict compliance and that noncompliance will result in per se




                                                14
                     OHIO FIRST DISTRICT COURT OF APPEALS


reversible error. Once again, the McDonald majority opinion does not attempt to

distinguish Eafford or overrule it.

       {¶38} The series of Ohio Supreme Court cases interpreting R.C. 2945.75(A)(2)

has created confusion for appellate courts faced with challenges made under the

statute, especially where the challenges are being made for the first time on appeal.

See Kilbane at ¶ 17 (noting that appellate courts “have been trying to reconcile the

conflicting opinions of Pelfrey and Eafford”); State v. Barnette, 

, 

, ¶ 30 (7th Dist.) (“We agree with the Eighth Appellate District that the

holdings in Pelfrey, Eafford, and McDonald offer somewhat conflicting guidance on

R.C. 2945.75.”); State v. Duncan, 3d Dist. Logan No. 8-12-15, 

(noting the inconsistencies in Pelfrey, Eafford, and McDonald); State v. Sanders,

, 

, ¶ 78 (5th Dist.) (noting that “the outcome in

McDonald is obviously at odds with that in Eafford”); State v. Henry, 9th Dist.

Summit No. 27758, 

 (“The application of [R.C. 2945.75(A)(2)] has

engendered much controversy since the Supreme Court of Ohio has issued [Pelfrey,

McDonald, and Eafford]”); State v. Sanders, 8th Dist. Cuyahoga No. 107253, 2019-

Ohio-1524, ¶ 47 (Pelfrey, Eafford, and McDonald “have led to some confusion

regarding what is required to comply with R.C. 2945.75(A)(2) and to what extent a

failure to strictly comply with R.C. 2945.75(A)(2) is subject to a plain-error

analysis[.]”).

       {¶39} The inconsistencies in the cases applying R.C. 2945.75(A)(2) become

readily apparent in Sims’s appeal. Following Pelfrey in this case, as the majority does,

leads to an unjust result and requires an implicit determination by an inferior

appellate court that Eafford is no longer good law. Following Eafford however, as I




                                              15
                      OHIO FIRST DISTRICT COURT OF APPEALS


would, leads to a just result that reflects the realities of Sims’s indictment, trial

stipulation, jury instructions, and the jury’s verdict.

       {¶40} Sims was indicted in count 2 with a third-degree felony OVI under R.C.

4511.19(A)(2) based on a prior felony OVI conviction. The trial proceeded with Sims

stipulating to the prior felony OVI conviction. As to the jury instructions on count 2,

the jury was instructed by the trial court that Sims’s prior OVI felony conviction was

conclusively established by stipulation. The jury then returned a guilty verdict on

count 2, and by doing so, the jury found that Sims had a prior OVI conviction, because

a prior conviction is an element of the offense under R.C. 4511.19(A)(2). The only

dispute that Sims’s appellate counsel now raises is that the jury never specifically

found that Sims’s prior conviction was a “felony.” But, the jury could not find Sims

guilty under R.C. 4511.19(A)(2) and also find that Sims had anything other than a prior

felony OVI conviction based on the express trial court instruction that Sims and the

state “have stipulated that Defendant has been convicted of a felony OVI offense within

twenty years.” This is not a case where the trial court could not tell from the verdict

form what the jury intended in finding Sims guilty. Therefore, strictly applying R.C.

2945.75(A)(2) to this case without any showing of plain error leads to the unjust result

that Sims committed first-degree misdemeanor OVI under R.C. 4511.19(A)(2). See

R.C. 1.47(C) (“In enacting a statute, it is presumed that [a] just and reasonable result

is intended[.]”).

       {¶41} Sims’s case is on point with State v. Kilbane, 8th Dist. Cuyahoga No.

99485, 

. In Kilbane, the defendant was charged with two counts of

OVI under R.C. 4511.19(A)(1)(a) and 4511.19(A)(1)(d). Both counts in the indictment

referenced that the defendant had been previously convicted of felony OVI, which

elevated the OVI charges to third-degree felonies. The jury returned guilty verdicts on


                                                16
                      OHIO FIRST DISTRICT COURT OF APPEALS


both counts. The verdict forms contained an explicit finding by the jury that the

defendant had been previously convicted of an OVI offense, but the verdict forms did

not specify that the prior conviction was a felony. The Kilbane court relied on Eafford

and held that the verdict forms did not rise to the level of plain error under R.C.

2945.75(A)(2), because of the absence of the single word “felony.” The Kilbane court

noted that the defendant had admitted to having a prior felony conviction under R.C.

4511.19, and the court noted the jury was expressly instructed as to the felony nature

of the defendant’s prior OVI conviction.

       {¶42} I would follow Kilbane in this case because I do not believe the trial

court erred under R.C. 2945.75(A)(2) in convicting Sims of third-degree felony OVI

under R.C. 4511.19(A)(2). The majority’s holding that Sims must be convicted of a

first-degree misdemeanor OVI defies every aspect of what actually occurred at the

trial-court level, including the indictment against Sims, the specific stipulation by the

parties, the jury’s instructions regarding that stipulation, and ultimately the jury’s

verdict. Therefore, I respectfully dissent from the portion of the majority’s opinion

holding that Sims must be convicted of first-degree misdemeanor OVI under count 2.

I concur in the majority’s holding that Sims’s OVI convictions in count 1 and count 2

are allied offenses of similar import that should have been merged by the trial court.




Please note:
       The court has recorded its own entry on the date of the release of this opinion.




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