[Cite as State v. Armbruster, 2024-Ohio-2763.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2023-08-056
: OPINION - vs - 7/22/2024 :
MARVIN EARL ARMBRUSTER, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS Case No. 2023-CR-00104
Mark J. Tekulve, Clermont County Prosecuting Attorney, and Nicholas A. Horton, Assistant Prosecuting Attorney, for appellee.
Gary A. Rosenhoffer and R. Scott Croswell, for appellant.
PIPER, J.
{¶1} Marvin Earl Armbruster timely appeals his conviction and sentence in the
Clermont County Court of Common Pleas for two counts of felonious assault, first-degree
felonies, both offenses with attached firearm and peace-officer specifications.
Armbruster's convictions were determined by a jury after three days of testimony. Upon Clermont CA2023-08-056
merging the firearm specifications into the peace-officer specifications, the trial court
sentenced Armbruster to consecutive sentences.
FACTUAL BACKGROUND
{¶2} In April 2022, Armbruster lived in a house located at 1937 East Concord
Road located at the corner of East Concord Road and Christine Drive. Christine Drive
was a gravel road without streetlights; however, some residents had spotlights which
detected motion. Armbruster's residence had two bedrooms, a living room in the front of
the house, and a kitchen in the back of the house with a large window that faced the
backyard. The kitchen also had a door going out onto a patio in the backyard.
Armbruster's grandson ("Grandson") lived with him at the residence at the time the
incident occurred.
{¶3} On April 24, 2022, at 2:53 a.m., Clermont County Sheriff Deputies Matt
Halcomb and Seth Sparks were separately dispatched to East Concord Road and
Christine Drive pursuant to 9-1-1 calls reporting gunfire. Each deputy stopped his cruiser
on Christine Drive approximately 200 feet from East Concord Road. The vehicles'
headlights remained on throughout the incident.
{¶4} The deputies approached a man on a dirt-motorbike talking with a woman.
The individuals informed the deputies where the gunshots were coming from. As the
deputies walked in the direction indicated, the deputies heard a male voice coming from
Armbruster's backyard, shouting, "I'm going to fucking kill you." The man, later identified
as Armbruster, began firing at the deputies. The man was positioned in a shooter's
stance, holding a handgun in two hands; he was approximately 25 feet away and aiming
directly at the deputies.
{¶5} When the firearm was fired the muzzle flashes allowed the deputies to
observe that the man was wearing a short-sleeved, black T-shirt and blue jeans. The
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deputies immediately sought cover and Deputy Sparks identified himself and Deputy
Holcomb as law enforcement officers. Deputy Sparks shouted for Armbruster to drop his
weapon which had no effect. Instead, Armbruster began firing again and the deputies
noticed that he was now using a shotgun. The deputies could hear the buckshot strike
the trees around them. The blasts from the shotgun increased in volume as if the shooter
was approaching closer to the position of the deputies. The deputies moved their position
to behind a shed and eventually made their way into a yard abutting Armbruster's
backyard. Upon observing a light illuminating inside Armbruster's kitchen the deputies
saw him cradling a shotgun, pacing back and forth. Just as before, he was wearing a
short-sleeved, black T-shirt and blue jeans.
{¶6} The Special Response Team eventually arrived and took control of the
scene ordering all occupants to exit the residence. Armbruster, Grandson, and
Grandson's friend, Kyle, exited the home. Deputies Halcomb and Sparks identified
Armbruster as the individual who had been shooting at them.
{¶7} Armbruster denied any memory of what he may have done, but stated he
was "in a world of shit." He indicated that he only remembered drinking mini bottles of
Fireball Whisky, going to bed, and waking up to a bullhorn. Armbruster acknowledged
that he kept a 12-gauge shotgun next to his bed, a .380 handgun under his pillow, and a
9 mm or .45 handgun in a nearby drawer.
{¶8} Spent handgun casings and expended shotgun shells were recovered from
Armbruster's backyard. Among multiple weathered and discolored casings and shells, at
least eight appeared freshly fired. They included three .45 mm casings, three .380 shell
casings, and two 12-gauge shotgun shells. Their location indicated a pattern of
advancing toward the location where the deputies had been. Ballistics analysis
determined that the casings were fired from two handguns and the shells from a shotgun
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found sitting near Armbruster's bedroom.
PROCEDURAL POSTURE
{¶9} On February 9, 2023, Armbruster was indicted by a Clermont County Grand
Jury on two counts of attempted aggravated murder, two counts of attempted aggravated
murder of peace officers, and two counts of felonious assault, all felonies of the first
degree. Each felonious assault offense was accompanied by two firearm specifications
alleging that Armbruster (1) used a firearm while committing the offense, and (2)
discharged a firearm at a peace officer while committing the offense.
{¶10} The trial commenced on June 12, 2023, where the state presented
testimony from Deputy Halcomb, Deputy Sparks, Armbruster's neighbors, two detectives
(who interviewed Armbruster), a BCI forensic firearms expert, Grandson, and Kyle. The
deputies testified that Armbruster fired three rounds from a handgun and two or three
rounds from a shotgun. The videotape of Armbruster's interview was played to the jury
and Armbruster's neighbors testified that the gunshots were coming from the direction of
Armbruster's residence. Armbruster presented no witnesses in his defense.
{¶11} The jury found Armbruster guilty of the two counts of felonious assault as
well as the specifications attached to those offenses. Armbruster was found not guilty of
the four counts of attempted aggravated murder. The trial court merged the firearm
specification attached to each felonious assault offense into the peace-officer
specification. Armbruster was sentenced to four years of incarceration for each of the
felonious assault offenses and to seven years for each of the peace-officer specifications.
The terms of incarceration were ordered to be served consecutively to one another.
{¶12} Armbruster appeals raising four assignments of error which address: (1)
whether the two felonious assault convictions had to be merged, (2) whether the
sentences for the two firearm specifications were impermissibly run consecutive to one
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another, (3) whether the evidence was insufficient or contrary to the manifest weight of
the evidence, and (4) whether the verdict forms were fatally defective because the degree
of the offense was not stated and the forms contained a typographical error. We address
each individually.
ANALYSIS
{¶13} Assignment of Error No. 1:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT FAILED TO MERGE THE FELONIOUS ASSAULT CONVICTIONS AS REQUIRED BY R.C. 2945.25.
{¶14} An appellate court reviews de novo whether two offenses are allied
offenses of similar import. State v. Williams, 2012-Ohio-5699, ¶ 28. We note that at
sentencing Armbruster did not request the offenses be merged, nor did he object to the
offenses not being merged. "An accused's failure to raise the issue of allied offenses of
similar import in the trial court forfeits all but plain error, and a forfeited error is not
reversible error unless it affected the outcome of the proceeding and reversal is
necessary to correct a manifest miscarriage of justice." State v. Rogers, 2015-Ohio-2459,
¶ 3. Thus, Armbruster must "demonstrate a reasonable probability that the convictions
are for allied offenses of similar import committed with the same conduct and without a
separate animus; absent that showing, [he] cannot demonstrate that the trial court's
failure to inquire whether the convictions merge for purposes of sentencing was plain
error." Id.
{¶15} Pursuant to R.C. 2941.25, Ohio's allied-offenses statute, the imposition of
multiple punishments for the same criminal conduct is prohibited. State v. Seymore,
2022-Ohio-2180, ¶ 13 (12th Dist.). In determining whether offenses are allied, courts are
instructed to consider three separate factors—the conduct, the animus, and the import.
State v. Ruff, 2015-Ohio-995, paragraph one of the syllabus. Offenses do not merge,
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and a defendant may be convicted and sentenced for multiple offenses if any of the
following are true: (1) the conduct constitutes offenses of dissimilar import, (2) the conduct
shows that the offenses were committed separately, or (3) the conduct shows that the
offenses were committed with separate animus or motivation. Id. at ¶ 25. "Two or more
offenses of dissimilar import exist within the meaning of R.C. 2941.25(B) when the
defendant's conduct constitutes offenses involving separate victims or if the harm that
results from each offense is separate and identifiable." Id. at paragraph two of the
syllabus.
{¶16} While the felonious assault offenses were identically charged in the
indictment, the evidence at trial made clear that each offense involved a separate victim,
Deputy Halcomb and Deputy Sparks. Because each offense targeted or attempted to
offend a different individual, the two felonious assault offenses were of dissimilar import,
and the trial court did not commit plain error by failing to merge the offenses. State v.
Kwambana, 2014-Ohio-2582, ¶ 11 (12th Dist.). Armbruster cannot demonstrate he had
a single animus to only cause one harm or that the offenses were not dissimilar due to
separate victims. Armbruster's first assignment of error is overruled.
{¶17} Assignment of Error No. 2:
THE TRIAL COURT COMMITTED PREJUDICIAL ERROR WHEN IT IMPOSED CONSECUTIVE SENTENCES ON THE FIREARM SPECIFICATIONS.
{¶18} We note the trial court did not impose a sentence for the firearm
specifications and therefore his assignment of error as stated has no merit. However, we
choose to address Armbruster's argument that the trial court erred when it ordered the
peace-officer specifications be served consecutively to one another.
{¶19} Both felonious assault offenses were accompanied with a seven-year R.C.
2941.1412 peace-officer specification. The trial court imposed a seven-year prison term
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for each of the R.C. 2941.1412 peace-officer specifications and ordered that those prison
terms be served consecutively to one another and consecutively to the prison terms
imposed on the felonious assault convictions.
{¶20} R.C. 2929.14(B)(1)(f) provides that when an offender is convicted of two or
more felonies, such as the felonious assault offenses here, and is also convicted of a
R.C. 2941.1412 peace-officer specification in connection with two or more of the felonies,
the trial court, after imposing a prison term for each of the felony offenses, is required to
impose a mandatory seven-year prison term for each of two of the peace-officer
specifications. R.C. 2929.14(B)(1)(f)(i) and (iii).
{¶21} R.C. 2929.14(C)(1) governs the imposition of consecutive sentences for
mandatory prison terms associated with various specifications. R.C. 2929.14(C)(1)(c)
governs which other prison terms must be served consecutively to any prison term
imposed for a peace-officer specification and provides:
If a mandatory prison term is imposed upon an offender pursuant to division (B)(1)(f) of this section, the offender shall serve the mandatory prison term so imposed consecutively to and prior to any prison term imposed for the underlying felony under division (A), (B)(2), or (B)(3) of this section or any other section of the Revised Code, and consecutively to any prison term or mandatory prison term previously or subsequently imposed upon the offender.
{¶22} The trial court was therefore required to impose a seven-year prison term
for each of the R.C. 2941.1412 peace-officer specifications pursuant to R.C.
2929.14(B)(1)(f)(i) and (iii) and was further required to order that those prison terms be
served consecutively pursuant to R.C. 2929.14(C)(1)(c). Therefore, the trial court
correctly followed the law and did not err by ordering that the seven-year prison terms be
served consecutively to one another and consecutively to the prison terms imposed on
the felonious assault offenses. Being without merit, Armbruster's second assignment of
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error is overruled.
{¶23} Assignment of Error No. 3:
ARMBRUSTER'S CONVICTIONS ARE NOT SUPPORTED BY LEGALLY SUFFICIENT EVIDENCE AND ARE AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
{¶24} Armbruster argues that his convictions for felonious assault and the peace-
officer specifications are not supported by sufficient evidence and are against the
manifest weight of the evidence because the state failed to prove that it was Armbruster
who shot at the two deputies.
{¶25} When reviewing the sufficiency of the evidence underlying a criminal
conviction, an appellate court examines the evidence to determine whether such
evidence, if believed, would convince the average mind of the defendant's guilt beyond a
reasonable doubt. State v. Hibbard, 2023-Ohio-983, ¶ 9 (12th Dist.). The relevant inquiry
is whether after viewing the evidence in a light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime proven beyond
a reasonable doubt. State v. Redden, 2024-Ohio-1088, ¶ 8 (12th Dist.).
{¶26} To determine whether a conviction is against the manifest weight of the
evidence, the reviewing court must look at the entire record, weigh the evidence and all
reasonable inferences, consider the credibility of the witnesses, and determine whether
in resolving the conflicts in the evidence, the trier of fact clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a new
trial ordered. Hibbard at ¶ 10. An appellate court will overturn a conviction due to the
manifest weight of the evidence only in extraordinary circumstances when the evidence
presented at trial weighs heavily in favor of acquittal. Id. "[A] determination that a
conviction is supported by the manifest weight of the evidence will also be dispositive of
the issue of sufficiency." State v. Davis, 2011-Ohio-2207, ¶ 40 (12th Dist.).
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{¶27} It is well settled that to warrant a conviction, the evidence must establish
beyond a reasonable doubt the identity of the accused as the person who committed the
crime at issue. Hibbard, 2023-Ohio-983 at ¶ 20. There is no requirement that an accused
must be identified in court or during a photo lineup. Id. The identity of the accused as
the perpetrator of the crime may be established by direct or circumstantial evidence. Id.
Circumstantial and direct evidence have the same probative value. Id.
{¶28} Upon reviewing the record, we find that Armbruster's convictions for
felonious assault and the peace-officer specifications are supported by sufficient evidence
and are not against the manifest weight of the evidence. In this case, the state presented
ample evidence that Armbruster was the man who shot, several times, at Deputies
Halcomb and Sparks.
{¶29} Armbruster's two next-door neighbors called 9-1-1 to report gunfire coming
from the vicinity of Armbruster's residence. Deputies Halcomb and Sparks, the two peace
officers who were subsequently shot at, both identified Armbruster's backyard as where
a man yelled, "I'm going to fucking kill you!" Then the deputies were shot at, first three
times with a handgun, then twice with a shotgun. Three .380 shell casings, three .45 shell
casings, and two 12-gauge shotguns shells were recovered from Armbruster's backyard,
the area where the shooter was standing. The casings and shells were recently fired, and
ballistics analysis determined that they were fired from two handguns and a shotgun
found in the vicinity of Armbruster's bedroom.
{¶30} The muzzle flashes from the firearm allowed Deputies Halcomb and Sparks
to observe a description of the individual shooting at them. That description of clothing
was identical to what Armbruster was wearing when he was apprehended. After
Armbruster exited his residence, the deputies positively identified Armbruster as the man
who had fired at them. Armbruster matched the deputies' description of the individual
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firing at them and later seen in the kitchen holding a shotgun. When questioned by
detectives, Armbruster claimed he had no memory of the events but asked if he had shot
anyone.
{¶31} Although Armbruster asserts that some of the testimony and evidence
presented at trial is "entitled to little or no credit or weight," it is well established that it is
the trier of fact who makes determinations of credibility and the weight to be given to the
evidence presented at trial. State v. Martino, 2018-Ohio-2882, ¶ 13 (12th Dist.). It is
equally well established that a conviction is not against the manifest weight of the
evidence merely because the trier of fact believed the testimony of the state's witnesses.
Id. The jury is free to believe or disbelieve the testimony of any witness at trial. State v.
Keller, 2019-Ohio-1397, ¶ 15 (12th Dist.).
{¶32} Considering the foregoing, we find that the evidence presented at trial does
not weigh heavily in favor of acquittal and that the jury did not clearly lose its way and
create a manifest miscarriage of justice in finding Armbruster guilty of felonious assault
and the R.C. 2941.1412 peace-officer specifications. Armbruster's convictions for
felonious assault and the peace-officer specifications are therefore supported by sufficient
evidence and are not against the manifest weight of the evidence. Finding no merit to the
third assignment of error, it is accordingly overruled.
{¶33} Assignment of Error No. 4:
THE SIGNED JURY VERDICT FORMS AS ACCEPTED BY THE TRIAL COURT IN THIS CASE ARE FATALLY DEFECTIVE AND A FINDING OF GUILT MUST BE ENTERED ON THE LOWEST LEVEL OF OFFENSE.
{¶34} In his fourth assignment of error, Armbruster argues the verdict forms were
fatally defective because the verdict forms contained a numerical, typographical error and
did not state the degree of the felonious assault offense. There is no dispute that
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Armbruster did not object to the verdict forms before, during, or after trial.
I. Compliance with R.C. 2945.75
{¶35} R.C. 2945.75(A)(2) provides the following regarding verdicts:
(A) 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.
{¶36} "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." State v. McDonald, 2013-Ohio-5042, ¶ 13.
(Emphasis added). "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.
{¶37} As relevant here, felonious assault is typically a second-degree felony,
however, it is enhanced to a first-degree felony if the subject aggrieved in the offense is
a peace officer. R.C. 2903.11(D)(1)(a). Armbruster argues that R.C. 2945.75 is not
satisfied in this case because there was a typographical error in the verdict forms that
could not be cured by the trial court. He furthers his argument that R.C. 2945.75 was
violated because there is no reference to the degree of the offense in the verdict forms.
Armbruster suggests a failure to strictly comply in stating the degree of the offense
requires reversal.
A. Typographical error
{¶38} As an initial matter, we agree there was a typographical error but disagree
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with the argument that such an error cannot be cured. Here, the verdict forms stated that
Armbruster was guilty of felonious assault "in violation of R.C. 2923.11(A)(2)." The verdict
forms should have stated that Armbruster was guilty of felonious assault in violation of
R.C. 2903.11(A)(2). (Emphasis added to distinguish the difference.)
{¶39} The error in the verdict forms was discovered after the jury executed the
verdict forms supplied previously by the trial court. The trial court in its sentencing entry
amended the verdict forms to reflect the typographical error. Courts considering identical
issues have concluded that such clerical or typographical errors may be corrected by the
court at any time, so long as the mistake is a "type of mistake or omission mechanical in
nature, which is apparent on the record, and which does not involve a legal decision or
judgment by an attorney." State v. Carswell, 2021-Ohio-3379, ¶ 26 (6th Dist.), citing Crim.
R. 36; State v. Cooper, 2023-Ohio-2897, ¶ 35, fn. 2 (5th Dist.).
{¶40} Here, the trial court acted within its authority to correct the typographical
error in the verdict forms which referred to the charge of felonious assault as being a
violation of R.C. 2923.11(A)(2), instead of 2903.11(A)(2). See Carswell at ¶ 27. The
typographical error referencing an incorrect numerical designation did not modify or
otherwise impact Armbruster's convictions for felonious assault. Id. Correcting the clerical
mistake was not a plain error.
B. Degree of offense
{¶41} Armbruster's additional issue under this assignment of error attempts to find
support in a trilogy of supreme court cases, yet he reduces his assignment of error to a
very narrow argument. State v. Pelfrey, 2007-Ohio-256; State v. Eafford, 2012-Ohio-
2224; State v. McDonald, 2013-Ohio-5042. Armbruster argues it is the degree of the
offense that must be in the verdict forms. Armbruster does not argue there was an
absence of an elevating factor. However, the statute clearly indicates an elevating factor
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or aggravating element can be referenced in the verdict forms to raise a second-degree
offense to a first-degree offense.
{¶42} On appeal, Armbruster argues that Pelfrey and McDonald established that
R.C. 2945.75 requires "strict compliance" and the degree of the offense must specifically
be mentioned. However, he does not address the entire holdings of those decisions.
Armbruster only argues that the jury verdict forms do not reference the "degree of the
offense as required by Pelfrey/McDonald." Admittedly, the cases Armbruster cites have
caused confusion regarding what is required of R.C. 2945.75 and to what extent a plain-
error analysis is applicable. State v. Sanders, 2019-Ohio-1524, ¶ 47 (8th Dist.); State v.
Shockey, 2024-Ohio-296, ¶ 34 (3d Dist.).
{¶43} However, neither Pelfrey nor McDonald strictly require the degree of the
offense be listed in the jury verdict form. Rather, both Pelfrey and McDonald clearly state
that a verdict form satisfies R.C. 2945.75 if either the degree of the offense is listed, or
the additional aggravating element is contained in the verdict forms. Pelfrey at ¶ 14;
McDonald at ¶ 19.
{¶44} In this case, the jury verdict forms state:
We, the Jury, find the Defendant, Marvin Earl Armbruster, GUILTY of felonious assault, in violation of R.C. 2923.11(A)(2) [sic], as charged in [Count Five and Count Six] of the indictment.
The same verdict forms also state:
We, the Jury, further find that the Defendant, Marvin Earl Armbruster, DID discharge a firearm at a peace officer while committing this offense, as to the second firearm specification in [Count Five and Count Six].
(Emphasis added). While it is true that the verdict forms do not contain the degree of the
offenses, the verdict forms sufficiently set forth the element that transforms each count of
felonious assault from a second-degree felony to a first-degree felony. Namely, that
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Armbruster discharged a firearm at a peace officer while committing the offense of
felonious assault. Such is permissible under Pelfrey, Eafford, and McDonald. The verdict
forms therefore comply with R.C. 2945.75(A)(2).
{¶45} Our dissenting colleague analyzes an issue under a misapprehension. In
other words, Armbruster never suggested it wasn't peace officers who were the victims
during the offenses. Although it generally goes without saying, it is well established that
it is not this court's duty to "root out" arguments that can support an assignment of error,
nor will this court "conjure up questions never squarely asked . . . ." State v. Fields, 2009-
Ohio-6921, ¶ 7 (12th Dist.); App. R. 16(A)(7). Armbruster did not develop the issue and
argument suggested by the dissent and this court will not construct such on Armbruster's
behalf. See Fields at ¶ 7; State v. Boatright, 2017-Ohio-5794, ¶ 8 (9th Dist.). Thus, we
decline to join the dissent's creation and analysis of an issue not raised.
{¶46} The dissent proposes that the specifications cannot be used to determine
that peace officers were the victims of the felonious assaults. Notably, there is no authority
in Ohio law that supports such a proposition. Instead, the dissent supports its proposition
by suggesting a potential factual scenario relying on matters outside the four corners of
the verdict forms. The speculative scenario relied upon is that the peace officer
specification could attach to another offense involving a different victim other than the
peace officers. However, we need not consider the world of factual possibilities that fall
outside the four corners of the verdict form.
{¶47} As expressly contained in the four corners of the verdict forms, it is plain to
read that the peace officers were the victims of the felonious assaults. The verdict forms
say as much and they are the only relevant considerations in determining whether the
dictates of R.C. 2945.75 were followed. McDonald, 2013-Ohio-5042 at ¶ 17, citing
Pelfrey, 2007-Ohio-256 at ¶ 14.
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II. PLAIN ERROR
{¶48} However, even if there was a de minimis or technical deficiency in
complying with the statute, an analysis of plain error does not support reversal. As we
noted above, the trilogy of Pelfrey, Eafford, and McDonald have caused some confusion
because they involve decisions somewhat non-congruent with one another.
{¶49} Our dissenting colleague suggests that Pelfrey and McDonald require that
strict compliance is the applicable standard and that a plain-error analysis is therefore
inapplicable. There have been appellate districts that have stated that "strict compliance"
is the required standard. See State v. Thomas, 2024-Ohio-1534, ¶ 113 (3d Dist.); State
v. Sims, 2023-Ohio-4711, ¶ 16 (1st Dist.); State v. Pierce, 2017-Ohio-8578, ¶ 21 (8th
Dist.). However, neither Pelfrey nor McDonald calls for reversal pursuant to a strict
compliance standard—the standard or phrase "strict compliance" was not mentioned in
those decisions. Furthermore, the statute itself makes no mention of a need for strict
compliance and neither does any criminal rule applicable to R.C. 2945.75(A)(2).
{¶50} Some appellate districts appear to reason that if a statutory duty is
mandatory, then a review for strict compliance is implicated. However, the supreme court
even recently has determined that failing to perform an affirmative statutory duty can still
be harmless. In State v. Mills, 2023-Ohio-4716, the failure to hold a mandatory
competency hearing was a harmless error. Id. at ¶ 3. Strict compliance was not
implicated.
{¶51} Similarly, in State v. Perry, 2004-Ohio-297, the supreme court considered
whether automatic reversal was required because the trial court failed to comply with the
mandatory duty in R.C. 2945.10(G) that required jury instructions to be filed along with
other papers in the case. The court stated:
The sole issue in this appeal is whether the failure of the trial
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court to maintain written jury instructions with the "papers of the case" is cause for reversal regardless of whether such error affected the substantial rights of the defendant.
Id. at ¶ 6.
{¶52} In rejecting the notion of structural error and instead reversing for the
appellate court to apply a plain-error analysis, Chief Justice Moyer cogently wrote:
For to hold that an error is structural even when the defendant does not bring the error to the attention of the trial court would be to encourage defendants to remain silent at trial only later to raise the error on appeal where the conviction would be automatically reversed. We believe that our holdings should foster rather than thwart judicial economy by providing incentives (and not disincentives) for the defendant to raise all errors in the trial court—where, in many cases, such errors can be easily corrected.
Id. at ¶ 23. (Emphasis in original.) That same sound reasoning is applicable here.
Furthermore, the court also emphasized that the defendant bears the burden of
demonstrating that a plain error reversal was necessary only to prevent a manifest
miscarriage of justice. Id. at ¶ 14.
{¶53} In this case, R.C. 2945.75(A)(2) was satisfied and Armbruster had
unequivocal notice of the charges he was facing at trial. Armbruster had no objection to
the trial court's instructions to the jury as to the evidence and definitions necessary to find
him guilty of the first-degree felonies for attempting to shoot two peace officers.
Armbruster knew the jury was charged with following those instructions (and the law
presumes they did so). He had no objection to the trial court's announcement that he had
been found guilty of attempting to shoot two peace officers. Neither before nor after
sentencing did Armbruster object to the guilty findings for two first-degree felonious
assaults.
{¶54} Eafford emphasized the standard for noticing plain error; the error must be
a deviation from a legal rule, it must be an "obvious" defect in the proceedings, and the
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error must have affected "substantial rights" that affected the outcome of the trial. Eafford,
2012-Ohio-2224 at ¶ 11. Eafford further emphasized Crim.R. 52(B) does not mean
reversal is necessary. Plain error is to be used with the utmost caution, under exceptional
circumstances and then only to prevent a manifest miscarriage of justice. Id. at ¶12.
{¶55} The reasoning offered in Perry by Chief Justice Moyer is both appropriate
and applicable here. It would be disingenuous to assert an obvious error occurred, yet
Armbruster invited the error by remaining silent. It would be similarly disingenuous to
assert but for the error a different result would have occurred, and a miscarriage of justice
would result unless Armbruster's convictions were vacated. The need for the utmost
caution as emphasized in Perry and Eafford does not support the use of plain error to
effectuate a reversal. Simply put, the trial court did not commit a plain error that requires
reversal.
{¶56} It is unnecessary to evaluate the existence of plain error since the four
corners of the verdict forms comply with R.C. 2945.75(A)(2). However, if the verdict forms
were deficient, a plain-error analysis does not support reversal of Armbruster's first-
degree felonious assault convictions. Thus, the fourth assignment of error is without merit
and hereby overruled.
CONCLUSION
{¶57} Having reviewed the record and the applicable law in consideration of
Armbruster's assignments of error we overrule each and find no merit to the appeal.
{¶58} Judgment affirmed.
S. POWELL, P.J., concurs.
M. POWELL, J., concurs in part and dissents in part.
M. POWELL, concurring in part and dissenting in part.
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{¶59} I concur in the majority opinion's resolution of the first three assignments of
error and in the rejection of the clerical error aspect of the fourth assignment of error.
However, because it cannot be determined from the four corners of the verdict forms that
peace officers were the victims of the felonious assault offenses and plain-error analysis
is inapplicable, the fourth assignment of error should be sustained.
{¶60} Armbruster was indicted on two counts of felonious assault for shooting at
Deputies Halcomb and Sparks. Felonious assault is typically a second-degree felony.
R.C. 2903.11(D)(1)(a). However, felonious assault is a first-degree felony if the victim of
the offense is a peace officer. Id. The indictment alleged that the victims of the felonious
assaults were peace officers; a R.C. 2941.1412 peace-officer specification was attached
to both counts of felonious assault, alleging that Armbruster "discharged a firearm at a
peace officer . . . while committing the offense."
{¶61} The jury found Armbruster guilty of both counts of felonious assault. The
jury verdict forms provided that Armbruster was found guilty of felonious assault "as
charged in" Counts Five and Six "of the indictment." Regarding the R.C. 2941.1412
peace-officer specifications, the verdict forms provided, "We, the jury, further find that
[Armbruster] did discharge a firearm at a peace officer while committing this offense, as
to the second firearm specification in Count Five [and Count Six]."
{¶62} R.C. 2945.75(A)(2) provides, "When the presence of one or more additional
elements makes an offense one of more serious degree, [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."
{¶63} The Ohio Supreme Court addressed the import of R.C. 2945.75(A)(2) in
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State v. Pelfrey, 2007-Ohio-256, and State v. McDonald, 2013-Ohio-5042, and whether
a failure to strictly comply with the statute is subject to a plain-error analysis.
{¶64} Pelfrey involved a third-degree felony tampering with records indictment.
Although tampering with records is generally a misdemeanor, the records at issue were
government records, which elevated the crime to a third-degree felony. See R.C.
2913.42(B). The verdict form did not set forth the degree of the offense or that the jury
had found that the records involved were government records. Instead, the verdict form
simply referred to the tampering with record offense "as charged in the indictment." The
supreme court upheld the court of appeals' reversal of Pelfrey's third-degree felony
conviction and its remand to the trial court to enter a judgment of conviction of first-degree
misdemeanor tampering with records. The supreme court found Pelfrey's failure to object
to the verdict form during the trial court proceedings of no consequence to its analysis
and did not engage in a plain-error review.
{¶65} Finding that the statute "imposes no unreasonable burden on lawyers or
trial judges," the supreme court held, "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." Pelfrey, 2007-
Ohio-256 at ¶ 12, 14. The court further held, "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." Id. at ¶ 14.
{¶66} McDonald involved a third-degree felony failure to comply with the order or
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signal of a police officer indictment. The offense is a first-degree misdemeanor unless
the offender causes a substantial risk of serious physical harm to persons or property by
operation of a motor vehicle, in which case the offense is elevated to a third-degree felony.
See R.C. 2921.331(C). The verdict form, though including a finding that McDonald
caused substantial risk of serious physical harm to persons or property, did not include a
finding that the risk resulted from McDonald's operation of a motor vehicle. The verdict
form also did not include the degree of the offense.
{¶67} The supreme court reversed McDonald's third-degree felony failure to
comply conviction. Citing extensively to Pelfrey, the supreme court stated, "Pelfrey
makes clear that in cases involving offenses for which the addition of an element or
elements can elevate the offense to a more serious degree, the verdict form itself is the
only relevant thing to consider in determining whether the dictates of R.C. 2945.75 have
been followed." McDonald, 2013-Ohio-5042 at ¶ 17. In determining compliance with
R.C. 2945.75(A)(2), the court held, "we look only to the verdict form signed by the jury to
determine whether, pursuant to R.C. 2945.75, McDonald was properly convicted of third-
degree felony." Id. at ¶ 18. The supreme court found that "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," and that "the verdict form the jury signed does not set forth the
additional elements that enhance the crime of failure to comply from a misdemeanor to a
felony; it therefore supports only a misdemeanor conviction." Id. at ¶ 23-24. Neither the
majority nor the dissent in McDonald referenced State v. Eafford, 2012-Ohio-2224.
{¶68} Eafford was decided after Pelfrey and before McDonald. It involved an
indictment charging fifth-degree felony possession of cocaine in violation of R.C.
2925.11(A) and (C)(4). Drug possession charges may be misdemeanors or felonies
depending upon the drug and quantity possessed; the least degree of possession of
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cocaine is a fifth-degree felony. See R.C. 2925.11(C)(4). Eafford was convicted as
charged and appealed. Applying Pelfrey, the court of appeals reversed Eafford's fifth-
degree cocaine possession conviction and remanded for resentencing for misdemeanor
possession because the jury verdict form did not state the degree of the offense or that
the drug involved was cocaine. Rather, the verdict form simply stated that Eafford was
found guilty of "possession of drugs in violation of R.C. 2925.11(A) . . . as charged in
Count Two of the indictment." Observing that possession of drugs in violation of R.C.
2925.11(C)(2) and possession of cocaine in violation of R.C. 2925.11(C)(4) are separate
offenses, the supreme court reversed the court of appeals' decision and reinstated
Eafford's fifth-degree felony cocaine possession conviction. In doing so, the supreme
court relied upon information beyond the four corners of the verdict form and, noting
Eafford's failure to object to the verdict form, applied a plain-error analysis.
{¶69} The supreme court held that the verdict form's failure to include the degree
of the offense or a finding that the drug involved was cocaine did not constitute plain error
because (1) the indictment alleged that Eafford possessed cocaine, (2) expert testimony
confirmed that the substance at issue was cocaine, (3) throughout the trial the parties and
the trial court treated the phrase "possession of drugs" as synonymous with possession
of cocaine, (4) the trial court instructed the jury that it could not find Eafford guilty of
possession of drugs as charged in the indictment unless it found that the drug involved
was cocaine, and (5) the verdict form referenced the indictment. Eafford, 2012-Ohio-
2224 at ¶ 17. Despite the court of appeals' reliance upon Pelfrey in reversing Eafford's
conviction, the Eafford majority did not address Pelfrey in its analysis.
{¶70} R.C. 2945.75(A) applies when an offense is elevated to a more serious
degree due to the presence of additional enhancing elements. Eafford does not apply
here because, unlike this case, Pelfrey, and McDonald, it did not involve an additional
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enhancing element. As discussed, Eafford was indicted for possession of cocaine in
violation of R.C. 2925.11(A) and (C)(4). The issue in Eafford was the absence of a finding
in the verdict form of the degree of the offense or the identification of the substance as
cocaine. Cocaine possession is an essential element of an offense under R.C.
2925.11(C)(4), not an additional enhancing element as described in R.C. 2945.75(A). In
other words, possession of cocaine is a distinct offense and not an enhanced specie of
possession of drugs. Eafford at ¶ 15. The supreme court did not resolve Eafford based
on R.C. 2945.75(A):
Although the [supreme] court discussed R.C. 2945.75(A)(2), its decision did not turn on that provision because it concluded that Eafford was charged with and convicted of "the least degree of [the] offense" of possession with cocaine, i.e., a fifth-degree felony, rather than an "elevat[ed] . . . degree of the offense." In other words, as decided by the court, Eafford did not involve the failure to include an enhancing element in the verdict form. As such, Eafford is distinguishable from Pelfrey.
State v. Sanders, 2019-Ohio-1524, ¶ 55 (8th Dist.). See also State v. Barnette, 2014-
Ohio-5405, ¶ 37 (7th Dist.) ("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 . . ."). Thus, the supreme court has implicitly recognized
the absence of conflict in these cases as Eafford's analysis ignores Pelfrey just as
McDonald's analysis ignores Eafford. Pelfrey, Eafford, and McDonald are not a trilogy in
the sense that they are a series of three things relating to the same subject. On the
contrary, Pelfrey and McDonald are a duology relating to the requirements of R.C.
2945.75(A) while Eafford deals with something altogether different.
{¶71} Eafford is inapplicable here. Unlike Eafford, the case at bar involves an
aggravating element in that the victims of the felonious assault offenses were peace
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officers, a circumstance that elevated the crime to a first-degree felony. The verdict forms
did not identify whether Armbruster was convicted of first or second-degree felony
felonious assault and did not set forth that the jury had found that the victims of the
felonious assault were peace officers.
{¶72} The verdict forms do find Armbruster guilty of two R.C. 2941.1412 peace-
officer specifications for discharging a firearm at a peace officer while committing the
offense. The specification findings are included within the four corners of the verdict
forms. However, based solely on the verdict forms, the specification convictions cannot
be taken as a determination that peace officers were the victims of the felonious assaults.
{¶73} Consider a scenario where an offender discharges a firearm at an
intervening peace officer while committing a felonious assault against a third party. In
such a situation, the offender would be guilty of a R.C. 2941.1412 peace-officer
specification; however, the peace officer would not be considered the victim of the
felonious assault. This scenario would also support a felonious assault charge for the
conduct against the peace officer along with a peace-officer specification. In this
instance, unless the verdict forms specify the degree of the offense or the enhancing
element that the victim of the felonious assault was a peace officer, it would not be
possible to determine from the verdict forms alone the specific felonious assault offense
of which the peace officer was a victim. The key point is that referring only to the verdict
form containing a peace-officer specification finding does not clarify whether the victim of
the felonious assault is a peace officer or a third party. Thus, the four corners of the
verdict forms do not disclose that a peace officer was the victim of the felonious assaults
committed by Armbruster. The only way to know this would require consideration of
matters beyond the four corners of the verdict forms, contrary to Pelfrey and McDonald.
{¶74} Because this case involved an additional element enhancing the felonious
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assault offenses from second-degree felonies to first-degree felonies, Pelfrey and
McDonald are the controlling law and Eafford is inapplicable. Applying Pelfrey and
McDonald to the jury verdict forms, I find they do not comply with R.C. 2945.75(A)(2) and
only support convictions for second-degree felony felonious assault, not first-degree
felony felonious assault, because they neither state the degree of the offense nor the
aggravating element that the victims of the felonious assaults were peace officers. See
Barnette, 2014-Ohio-5405. Moreover, objection to the verdict forms is not necessary to
preserve the issue for review: "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 [a] conviction based
on additional circumstances[.] The express requirement of the statute cannot be fulfilled
. . . by showing the defendant failed to raise the issue of the inadequacy of the verdict
form." Pelfrey, 2007-Ohio-256 at ¶ 12-14; McDonald, 2013-Ohio-5042 at ¶ 17. Thus,
plain-error analysis does not apply.
{¶75} Armbruster's fourth assignment of error should be sustained, his convictions
for first-degree felony felonious assault vacated, and the matter remanded for the trial
court to enter a judgment convicting Armbruster of two counts of felonious assault as
second-degree felonies and for resentencing.
{¶76} With regard and respect for my colleagues in the majority, I dissent.
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