[Cite as State v. Mayo, 2017-Ohio-1249.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 16CA26 MICHAEL MAYO : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 16CR06-100
JUDGMENT: Reversed and remanded
DATE OF JUDGMENT ENTRY: April 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant CHARLES MCCONVILLE ERIC C. NEMECEK 117 East High Street, Suite 234 1360 East 9th Street, Suite 650 Mount Vernon, OH 43050 Cleveland, OH 44114 [Cite as State v. Mayo, 2017-Ohio-1249.]
Gwin, P.J.
{¶1} Appellant Michael Mayo appeals his conviction of one count of importuning.
The State of Ohio is the appellee.
Facts & Procedural History
{¶2} Appellant posted an ad on Craigslist. Detective Bobo of the Knox County
Sheriff’s Office responded to appellant’s ad. Detective Bobo sent a picture of his fake
persona to appellant saying, “Hi I’m Hannah,” and giving appellant a cell phone number
to text. Appellant responded and they texted back and forth. The conversation turned
sexual. Detective Bobo testified he held himself out to be fifteen years of age and in high
school. Appellant set up a time and place to meet with “Hannah.” After confirming
appellant’s identity through pictures, Detective Bobo found appellant had a gray Toyota
Tundra registered in his name. Detective Bobo stated that appellant arrived at the
appointed time to meet “Hannah” in the Toyota Tundra by the meeting spot.
{¶3} Detective Bobo conducted a traffic stop of appellant’s vehicle near the
location where appellant and “Hannah” planned to meet. Detective Bobo testified
appellant admitted it was him texting with “Hannah,” but said he was there to meet a girl
to have dinner. Appellant was arrested. Appellant testified at trial that he thought
“Hannah” was lying about her age when she said she was fifteen years old because he
looked at a Facebook page of her and saw she was an older adult female.
{¶4} On June 7, 2016, appellant was indicted on one count of importuning in
violation of R.C. Section 2907.07(D)(2). Appellant was arraigned and pled not guilty to
the charge on June 10, 2016. On June 13, 2016, the trial court set the matter for a jury Knox County, Case No. 16CA26 3
trial. Appellant filed a motion to continue the jury trial. The trial court granted appellant’s
motion to continue and rescheduled the trial for October 25, 2016.
{¶5} On October 21, 2016, appellant filed a “waiver of right to jury trial.” The
waiver was signed by appellant and appellant’s attorney. The waiver stated as follows:
“Now comes the defendant, Michael A. Mayo, who hereby knowingly, intelligently, and
voluntarily waives his right to a trial by jury. Defendant requests that this matter proceed
to a trial to the Court.”
{¶6} The trial court conducted a bench trial on October 25, 2016. At the
beginning of the trial, the trial court stated, “Let the record show the Defendant, Michael
Mayo, is present in the courtroom represented by Attorney Jim Giles; the State’s in the
courtroom in the person of Chip McConville, Knox County Prosecuting Attorney. This
matter is set for a bench trial, Defendant having waived jury on October 21st.” The trial
court then asked the parties if they were ready to proceed. After both parties confirmed
they were ready to proceed, the State made its opening statement.
{¶7} Detective Bobo and appellant testified at the bench trial. On October 26,
2016, the trial court issued a judgment entry finding appellant guilty of one count of
importuning in violation of R.C. 2907.07(D)(2), ordering a pre-sentence investigation, and
scheduling a sentencing hearing for December 2, 2016. At the sentencing hearing, the
trial court sentenced appellant to eleven months in prison and classified him as a Tier I
sexual offender.
{¶8} Appellant appeals his conviction and assigns the following as error:
{¶9} “I. THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONDUCT A
BENCH TRIAL IN THIS CASE. Knox County, Case No. 16CA26 4
{¶10} “II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION IN THIS CASE.
{¶11} “III. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
CONSTRUCTIVELY AMEND THE INDICTMENT.
{¶12} “IV. THE TRIAL COURT ERRED BY REJECTING MAYO’S ENTRAPMENT
DEFENSE.”
I.
{¶13} In his first assignment of error, appellant argues the trial court did not have
jurisdiction to conduct a bench trial in this case. Specifically, appellant contends the jury
waiver was not properly executed and failed to substantially comply with R.C. 2945.05
because it was not made in open court.
{¶14} R.C. 2945.05 governs the waiver of the right to a jury trial. The Supreme
Court of Ohio reviewed R.C. 2945.05 in State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-
4277, 872 N.E.2d 279 in which the defendant signed a written jury waiver, but was not
questioned in open court regarding the waiver. Instead, the trial court stated in open court
that there would be a waiver of a jury trial. Id. The Supreme Court found a valid jury
waiver must meet five conditions; it must be (1) in writing, (2) signed by the defendant,
(3) filed, (4) made part of the record, and (5) made in open court. Id.
{¶15} As to the open court requirement, the Supreme Court held, “to satisfy the
‘in open court’ requirement in R.C. 2945.05, there must be some evidence in the record
that the defendant while in the courtroom and in the presence of counsel, if any,
acknowledged the jury waiver to the trial court.” Id. Absent such evidence, the waiver
does not comply with the requirements of R.C. 2945.05 and is therefore invalid. Id; State Knox County, Case No. 16CA26 5
v. George, 5th Dist. Licking No. 2010CA00001, 2010-Ohio-3375; State v. Teagarden, 5th
Dist. Licking No. 08-CA-39, 2008-Ohio-6986.
{¶16} This case is analogous to the Lomax case where four of the five
requirements are not at issue. Appellant signed a written waiver, which was filed on
October 21, 2016, and was made a part of the record. A written waiver is presumptively
voluntary, knowing, and intelligent. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277,
872 N.E.2d 279. While this Court has previously held nothing in R.C. 2945.05 requires a
trial court engage in a colloquy with the defendant before accepting his waiver of a jury,
we have held there must be some evidence in the record that the defendant
acknowledged, in open court and in the presence of counsel, if represented, that he
desires to waive his right to a jury trial. State v. Teagarden, 5th Dist. Licking No. 08-CA-
39, 2008-Ohio-6986.
{¶17} Aside from the passing reference to the jury waiver of October 21st, the trial
court did not address appellant and have him acknowledge in open court and in the
presence of counsel that he was waiving his right to a jury trial. Because there is no
indication from the transcript, nor any other evidence in the record, that appellant waived
his right to a jury trial in open court, the requirements of R.C. 2945.05 were not met in this
case and the waiver must be deemed invalid.
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[Cite as State v. Mayo, 2017-Ohio-1249.]
COURT OF APPEALS KNOX COUNTY, OHIO FIFTH APPELLATE DISTRICT
JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. William B. Hoffman, J. Plaintiff-Appellee : Hon. Earle E. Wise, J. : -vs- : : Case No. 16CA26 MICHAEL MAYO : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Knox County Court of Common Pleas, Case No. 16CR06-100
JUDGMENT: Reversed and remanded
DATE OF JUDGMENT ENTRY: April 3, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant CHARLES MCCONVILLE ERIC C. NEMECEK 117 East High Street, Suite 234 1360 East 9th Street, Suite 650 Mount Vernon, OH 43050 Cleveland, OH 44114 [Cite as State v. Mayo, 2017-Ohio-1249.]
Gwin, P.J.
{¶1} Appellant Michael Mayo appeals his conviction of one count of importuning.
The State of Ohio is the appellee.
Facts & Procedural History
{¶2} Appellant posted an ad on Craigslist. Detective Bobo of the Knox County
Sheriff’s Office responded to appellant’s ad. Detective Bobo sent a picture of his fake
persona to appellant saying, “Hi I’m Hannah,” and giving appellant a cell phone number
to text. Appellant responded and they texted back and forth. The conversation turned
sexual. Detective Bobo testified he held himself out to be fifteen years of age and in high
school. Appellant set up a time and place to meet with “Hannah.” After confirming
appellant’s identity through pictures, Detective Bobo found appellant had a gray Toyota
Tundra registered in his name. Detective Bobo stated that appellant arrived at the
appointed time to meet “Hannah” in the Toyota Tundra by the meeting spot.
{¶3} Detective Bobo conducted a traffic stop of appellant’s vehicle near the
location where appellant and “Hannah” planned to meet. Detective Bobo testified
appellant admitted it was him texting with “Hannah,” but said he was there to meet a girl
to have dinner. Appellant was arrested. Appellant testified at trial that he thought
“Hannah” was lying about her age when she said she was fifteen years old because he
looked at a Facebook page of her and saw she was an older adult female.
{¶4} On June 7, 2016, appellant was indicted on one count of importuning in
violation of R.C. Section 2907.07(D)(2). Appellant was arraigned and pled not guilty to
the charge on June 10, 2016. On June 13, 2016, the trial court set the matter for a jury Knox County, Case No. 16CA26 3
trial. Appellant filed a motion to continue the jury trial. The trial court granted appellant’s
motion to continue and rescheduled the trial for October 25, 2016.
{¶5} On October 21, 2016, appellant filed a “waiver of right to jury trial.” The
waiver was signed by appellant and appellant’s attorney. The waiver stated as follows:
“Now comes the defendant, Michael A. Mayo, who hereby knowingly, intelligently, and
voluntarily waives his right to a trial by jury. Defendant requests that this matter proceed
to a trial to the Court.”
{¶6} The trial court conducted a bench trial on October 25, 2016. At the
beginning of the trial, the trial court stated, “Let the record show the Defendant, Michael
Mayo, is present in the courtroom represented by Attorney Jim Giles; the State’s in the
courtroom in the person of Chip McConville, Knox County Prosecuting Attorney. This
matter is set for a bench trial, Defendant having waived jury on October 21st.” The trial
court then asked the parties if they were ready to proceed. After both parties confirmed
they were ready to proceed, the State made its opening statement.
{¶7} Detective Bobo and appellant testified at the bench trial. On October 26,
2016, the trial court issued a judgment entry finding appellant guilty of one count of
importuning in violation of R.C. 2907.07(D)(2), ordering a pre-sentence investigation, and
scheduling a sentencing hearing for December 2, 2016. At the sentencing hearing, the
trial court sentenced appellant to eleven months in prison and classified him as a Tier I
sexual offender.
{¶8} Appellant appeals his conviction and assigns the following as error:
{¶9} “I. THE TRIAL COURT DID NOT HAVE JURISDICTION TO CONDUCT A
BENCH TRIAL IN THIS CASE. Knox County, Case No. 16CA26 4
{¶10} “II. THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO
SUSTAIN A CONVICTION IN THIS CASE.
{¶11} “III. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO
CONSTRUCTIVELY AMEND THE INDICTMENT.
{¶12} “IV. THE TRIAL COURT ERRED BY REJECTING MAYO’S ENTRAPMENT
DEFENSE.”
I.
{¶13} In his first assignment of error, appellant argues the trial court did not have
jurisdiction to conduct a bench trial in this case. Specifically, appellant contends the jury
waiver was not properly executed and failed to substantially comply with R.C. 2945.05
because it was not made in open court.
{¶14} R.C. 2945.05 governs the waiver of the right to a jury trial. The Supreme
Court of Ohio reviewed R.C. 2945.05 in State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-
4277, 872 N.E.2d 279 in which the defendant signed a written jury waiver, but was not
questioned in open court regarding the waiver. Instead, the trial court stated in open court
that there would be a waiver of a jury trial. Id. The Supreme Court found a valid jury
waiver must meet five conditions; it must be (1) in writing, (2) signed by the defendant,
(3) filed, (4) made part of the record, and (5) made in open court. Id.
{¶15} As to the open court requirement, the Supreme Court held, “to satisfy the
‘in open court’ requirement in R.C. 2945.05, there must be some evidence in the record
that the defendant while in the courtroom and in the presence of counsel, if any,
acknowledged the jury waiver to the trial court.” Id. Absent such evidence, the waiver
does not comply with the requirements of R.C. 2945.05 and is therefore invalid. Id; State Knox County, Case No. 16CA26 5
v. George, 5th Dist. Licking No. 2010CA00001, 2010-Ohio-3375; State v. Teagarden, 5th
Dist. Licking No. 08-CA-39, 2008-Ohio-6986.
{¶16} This case is analogous to the Lomax case where four of the five
requirements are not at issue. Appellant signed a written waiver, which was filed on
October 21, 2016, and was made a part of the record. A written waiver is presumptively
voluntary, knowing, and intelligent. State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277,
872 N.E.2d 279. While this Court has previously held nothing in R.C. 2945.05 requires a
trial court engage in a colloquy with the defendant before accepting his waiver of a jury,
we have held there must be some evidence in the record that the defendant
acknowledged, in open court and in the presence of counsel, if represented, that he
desires to waive his right to a jury trial. State v. Teagarden, 5th Dist. Licking No. 08-CA-
39, 2008-Ohio-6986.
{¶17} Aside from the passing reference to the jury waiver of October 21st, the trial
court did not address appellant and have him acknowledge in open court and in the
presence of counsel that he was waiving his right to a jury trial. Because there is no
indication from the transcript, nor any other evidence in the record, that appellant waived
his right to a jury trial in open court, the requirements of R.C. 2945.05 were not met in this
case and the waiver must be deemed invalid. In addition, appellee concedes in its brief
that this case is analogous to the Lomax case, that the record in this case is devoid of
any evidence appellant acknowledged the waiver in open court and in the presence of
counsel, and that the trial court erred in not having appellant acknowledge the previously-
filed written waiver. Knox County, Case No. 16CA26 6
{¶18} The Ohio Supreme Court and this Court have previously held that the
proper remedy when a jury waiver is invalid is to remand the case to the trial court for a
new trial. State v. Pless, 74 Ohio St.3d 333, 1996-Ohio-102, 658 N.E.2d 766; State v.
White, 5th Dist. Muskingum No. CT2013-0039, 2013-Ohio-5858. Appellant’s first
assignment of error is sustained.
II., III., IV.
{¶19} Based upon our decision in Assignment of Error I which necessitates a new
trial, we find these assignments of error are moot. State v. White, 5th Dist. Muskingum
No. CT2013-0039, 2013-Ohio-5858; State v. George, 5th Dist. Licking No. 2010CA00001,
2010-Ohio-3375. Knox County, Case No. 16CA26 7
{¶20} Accordingly, appellant’s first assignment of error is sustained and the
second, third, and fourth assignments of error are moot. The judgment of the Knox
County Court of Common Pleas is reversed and remanded for a new trial.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle, J., concur