State v. Pelfrey

{¶ 1} The Second District Court of Appeals has certified this case pursuant to Section 3(B)(4), Article IV, Ohio Constitution and App.R. 25. The Second District Court of Appeals found its judgment to be in conflict with the judgments of the Fourth District Court of Appeals in State v. Wireman (Apr. 2, 2002), Pike App. No. 01CA662, 2002 WL 971842, the Eighth District Court of Appeals in State v. Sullivan, Cuyahoga App. No. 82816, 2003-Ohio-5930, 2003 WL 22510808, and the Twelfth District Court of Appeals in Cockrell v. Russell (Nov. 18, 1996), Warren App. No. CA96-07-071,1996 WL 666732, on the following issue: “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.” The answer to this question is yes.

{¶ 2} The Ohio Environmental Protection Agency (“EPA”) regularly performs covert audits on the employees of Enviro-Test Systems, which performs automobile-emissions tests (“E-checks”) for the state of Ohio. During a routine covert audit, an EPA employee, dressed in plainclothes and without any identification to show that she was an EPA employee, received an offer from an Enviro-Test Systems inspector to pass her vehicle, though the vehicle had failed the emissions test. The Enviro-Test Systems employees revealed to the undercover EPA employee a scheme that involved issuing illegitimate waivers in exchange for $30 and arranged with the undercover EPA employee to fraudulently “waive” her vehicle.

{¶ 3} An Enviro-Test Systems employee, appellee, David Pelfrey, was arrested and charged by indictment with tampering with records, in violation of R.C. 2913.42, which requires an enhanced charge of third-degree felony when the defendant’s tampering involves government records. R.C. 2913.42(B)(4). A jury found Pelfrey guilty, and he was sentenced on the third-degree felony conviction to serve four years in prison. The Second District Court of Appeals affirmed Pelfrey’s conviction, rejecting a manifest-weight-of-the-evidence argument. State v. Pelfrey, Montgomery App. No. 19955, 2004-Ohio-3401, 2004 WL 1459222.

{¶ 4} The court of appeals subsequently granted Pelfrey’s application to reopen the appeal under App.R. 26(B). Pelfrey argued that the trial court had erred in entering a conviction of a third-degree felony because the verdict form and the trial court’s subsequent verdict entry were inadequate to support a conviction of tampering with government records. Instead, Pelfrey argued that he could have been convicted only of the misdemeanor offense of tampering with records. See R.C. 2913.42(B)(2). In support of his argument, Pelfrey cited R.C. 2945.75(A)(2), which requires that a guilty verdict state either the degree of the offense of which the offender is found guilty or that the additional elements that make an offense one of a more serious degree are present. If neither is included, R.C. 2945.75(A)(2) directs that “a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” In this case, neither the verdict form nor the trial court’s verdict entry set forth the degree of the offense or that the jury had found that the records involved were government records.

{¶ 5} The Second District Court of Appeals agreed with Pelfrey’s argument and stated, “ ‘Pelfrey’s failure to raise this defect at trial did not waive it, and the fact that the indictment and jury instructions addressed the government-records issue did not cure the non-compliance with R.C § 2945.75(A)(2).’ ” State v. Pelfrey, Montgomery App. No. 19955, 2005-Ohio-5006, 2005 WL 2327123, ¶ 23, quoting State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 23. The court of appeals held that “the trial court was required to enter a conviction for first-degree misdemeanor tampering with records, which is the least degree of the offense under R.C. § 2913.42.” Id.

{¶ 6} We accepted jurisdiction over the state’s discretionary appeal and also determined that a conflict exists.

{¶ 7} R.C. 2945.75 provides:

{¶ 8} “(A) When the presence of one or more additional elements makes an offense one of more serious degree:

{¶ 9} “(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.

{¶ 10} “(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.”

{¶ 11} This court has repeatedly stated that “ ‘if the meaning of a statute is clear on its face, then it must be applied as it is written.’ ” Hartmann v. Duffey, 95 Ohio St.3d 456, 2002-Ohio-2486, 768 N.E.2d 1170, ¶ 8, quoting Lake Hosp. Sys., Inc. v. Ohio Ins. Guar. Assn. (1994), 69 Ohio St.3d 521, 524, 634 N.E.2d 611. “Thus, if the statute is unambiguous and definite, there is no need for further interpretation.” Id. “To construe or interpret what is already plain is not interpretation but legislation, which is not the function of the courts.” Lake Hosp. Sys., 69 Ohio St.3d at 524, 634 N.E.2d 611, quoting Iddings v. Jefferson Cty. School Dist. Bd. of Edn. (1951), 155 Ohio St. 287, 44 O.O. 294, 98 N.E.2d 827.

{¶ 12} The statutory requirement certainly imposes no unreasonable burden on lawyers or trial judges. R.C. 2945.75(A) plainly requires that in order to find a defendant guilty of “an offense * * * of more serious degree,” the guilty verdict must either state “the degree of the offense of which the offender is found guilty” or state that “additional element or elements are present.” R.C. 2945.75(A)(2) also provides, in the very next sentence, what must occur if this requirement is not met: “Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” When the General Assembly has written a clear and complete statute, this court will not use additional tools to produce an alternative meaning.

{¶ 13} In this case, Pelfrey’s offense of tampering with records would have constituted a misdemeanor under R.C. 2913.42(B)(2)(a) but for the additional element that the records at issue were government records, a circumstance that elevates the crime to a third-degree felony under R.C. 2913.42(B)(4). However, neither the verdict form nor the trial court’s verdict entry mentions the degree of Pelfrey’s offense; nor do they mention that the records involved were government records. The statute provides explicitly what must be done by the courts in this situation: the “guilty verdict constitutes a finding of guilty of the least degree of the offense charged.” R.C. 2945.75(A)(2). In this case, therefore, Pelfrey can be convicted only of a misdemeanor offense, which is the least degree under R.C. 2913.42(B) of the offense of tampering with records.

{¶ 14} 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.

{¶ 15} We therefore affirm the judgment of the court of appeals, which reversed Pelfrey’s conviction of tampering with government records and remanded the cause for the trial court to enter a judgment convicting Pelfrey of tampering with records as a first-degree misdemeanor.

Judgment affirmed.

Gallagher, Pfeifer, O’Connor and Lanzinger, JJ., concur.

Lundberg Stratton and O’Donnell, JJ., dissent.

Sean C. Gallagher, J., of the Eighth Appellate District, was assigned to sit for Resnick, J., whose term ended on January 1, 2007.

Cupp, J., whose term began on January 2, 2007, did not participate in the consideration or decision of this case.