State v. Thomas

2025 Ohio 603

• Court: Ohio Court of Appeals
• Decided: February 24, 2025
• Docket: 9-23-65
• Status: Published

Opinion

[Cite as State v. Thomas, 2025-Ohio-603.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY

STATE OF OHIO, CASE NO. 9-23-65 PLAINTIFF-APPELLEE,

v.

TEDDY THOMAS, III, OPINION

DEFENDANT-APPELLANT.

Appeal from Marion County Common Pleas Court Trial Court No. 22-CR-115

Judgment Affirmed

Date of Decision: February 24, 2025

APPEARANCES:

April F. Campbell for Appellant

Allison M. Kesler for Appellee Case No. 9-23-65

WALDICK, P.J.

{¶1} In this case, defendant-appellant, Teddy Thomas, III (“Thomas”),

initially filed a direct appeal of the September 6, 2023 judgment of conviction and

sentence entered against him in the Marion County Court of Common Pleas,

following a jury trial in which Thomas was found guilty of multiple felony

offenses. In State v. Thomas, 2024-Ohio-1534 (3d Dist.), this Court affirmed in part

and reversed in part. The reversal related to deficient verdict forms as to two of the

counts upon which Thomas had been convicted. Id.

{¶2} The plaintiff-appellee, State of Ohio, then appealed the verdict form

issue to the Supreme Court of Ohio, who subsequently reversed our decision in the

case. State v. Thomas, 2024-Ohio-5177.

{¶3} This appeal is now before this Court on remand from the Supreme Court

of Ohio, for application of that Court’s decision in State v. Mays, 2024-Ohio-4616,

to this case. State v. Thomas, supra, 2024-Ohio-5177. On remand, we reevaluate

Thomas’s sixth assignment of error, relating to the facially deficient verdict forms,

in light of the standards articulated by the Supreme Court of Ohio in State v. Mays.

For the reasons set forth below, we now affirm the judgment of the trial court in all

respects.

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Procedural Background

{¶4} This case originated on February 16, 2022, when a Marion County

grand jury returned a five-count indictment against Thomas, charging him as

follows: Count 1 – Attempted Murder, a first-degree felony in violation of R.C.

2923.02 and R.C. 2903.02(A); Count 2 – Felonious Assault, a first-degree felony in

violation of R.C. 2903.11(A) and (D(1)(a); Count 3 – Aggravated Burglary, a first-

degree felony in violation of R.C. 2911.11(A); Count 4 – Domestic Violence, a

fourth-degree felony in violation of R.C. 2919.25(A) and (D)(3); and Count 5 –

Inducing Panic, a fourth-degree felony in violation of R.C. 2917.31(A)(2) and

(C)(3). Counts 1, 2, and 3 also each contained a Repeat Violent Offender (“RVO”)

specification pursuant to R.C. 2941.149(A).

{¶5} On July 25, 2023, a jury trial commenced in the case. During the course

of the three-day trial, both the prosecution and the defense presented evidence.

{¶6} On July 27, 2023, the jury received the case for deliberation. Later that

same date, the jury returned verdicts on all counts. Thomas was found guilty on

Counts 1, 2, 4, and 5. On Count 3, Thomas was found not guilty on the originally

indicted charge of Aggravated Burglary, but was found guilty of the lesser included

offense of Burglary.

{¶7} On August 31, 2023, a sentencing hearing was held. Prior to proceeding

to sentencing, the trial court found Thomas to be guilty of the RVO specifications

in Counts 1 and 2 of the indictment, but found that the RVO specification in Count

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3 was not applicable to the lesser included offense of which Thomas had been found

guilty. The trial court further found that Count 1 and Count 2 were allied offenses

of similar import and must be merged, and the prosecution elected to proceed to

sentencing on Count 1.

{¶8} The trial court then sentenced Thomas as follows: Count 1 – an

indefinite prison term consisting of a minimum 11 years and a potential maximum

of 16 ½ years, plus an additional 10-year prison term for the RVO specification;

Count 3 – 8 years in prison; Count 4 – 18 months in prison; and Count 5 – 18 months

in prison. The trial court ordered that all prison terms be served consecutively, for

an aggregate minimum sentence of 32 years in prison up to a maximum of 37 ½

years in prison.

{¶9} In the initial direct appeal, State v. Thomas, 2024-Ohio-1534 (3d Dist.),

Thomas raised six assignments of error for our review. This Court overruled all

assignments of error except for the sixth assignment of error relating to the verdict

forms on Counts 4 and 5. Id. As to Counts 4 and 5, we found the verdict forms

insufficient to convict Thomas of the crimes charged in those counts, as those

verdict forms did not set forth additional enhancing elements of the indicted

offenses, nor did the verdict forms indicate the degree of the offenses charged. Id.

Given the incomplete verdict forms, we found that Thomas could only be properly

convicted of the lowest forms of the offenses charged in Counts 4 and 5, pursuant

to R.C. 2945.75 and State v. Pelfrey, 2007-Ohio-256. Id. Accordingly, we reversed

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Thomas’s convictions on Counts 4 and 5, and remanded the case for the trial court

to enter judgment convicting Thomas of the lowest forms of the offenses charged in

those two counts and to impose sentence on the lowest forms of the offenses at issue.

Id.

{¶10} As noted above, the State of Ohio then appealed our decision in this

case to the Supreme Court of Ohio. The Supreme Court of Ohio accepted the

appeal, and then stayed proceedings in the case pending the outcome of that Court’s

decision in State v. Mays, Supreme Court case number 2023-0839. See

announcement at 2024-Ohio-3096.

{¶11} On September 25, 2024, the Supreme Court of Ohio issued its decision

in State v. Mays, 2024-Ohio-4616.

{¶12} On October 31, 2024, the Ohio Supreme Court reversed our judgment

in this case, and remanded the case to this Court for application of State v. Mays to

this matter. State v. Thomas, 2024-Ohio-5177.

Analysis on Remand

{¶13} On remand, we now reevaluate Thomas’s sixth assignment of error,

relating to the facially deficient verdict forms on Counts 4 and 5, in light of the

standards articulated by the Supreme Court of Ohio in State v. Mays. For the reasons

set forth below, we now affirm the judgment of the trial court in all respects.1

1 The decision of the Supreme Court of Ohio in this case did not alter our prior decision in State v. Thomas, 2024-Ohio-1534 (3d Dist.), with regard to the first five assignments of error. Therefore, that original opinion remains controlling on all other issues.

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Sixth Assignment of Error

Thomas’s convictions and sentences for domestic violence and inducing panic should be reversed because the verdict forms do not comply with R.C. 2945.75: There was no special finding or degree of offense listed in the verdict forms to convict Thomas and sentence him, on anything more than two misdemeanors.

{¶14} In the sixth assignment of error, Thomas argues that the verdict forms

relating to Count 4 (Domestic Violence) and Count 5 (Inducing Panic) were

insufficient to convict him of the level of those two offenses as charged in the

indictment.

{¶15} In Count 4, Thomas was charged with Domestic Violence, a fourth-

degree felony in violation of R.C. 2919.25(A) and (D)(3). Pursuant to R.C.

2919.25(D)(2), Domestic Violence in violation of R.C. 2919.25(A) is a

misdemeanor of the first degree. However, pursuant to R.C. 2919.25(D)(3),

Domestic Violence is a felony of the fourth degree if, as indicted here, the offender

has previously been convicted of an offense of violence and the victim of the prior

offense was family or household member at the time.

The verdict form for Count 4 read:

We, the jury in this case, being duly impaneled and sworn, find the Defendant, Teddy Gene Thomas, III *GUILTY on the offense of Domestic Violence [R.C. 2929.25(A)] as charged in Count 4 of the Indictment.

(Brackets in original.) (Docket No. 174).

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{¶16} In Count 5, Thomas was charged with Inducing Panic, a fourth-degree

felony in violation of R.C. 2917.31(A)(2) and (C)(3). Pursuant to R.C.

2917.31(C)(2), Inducing Panic in violation of R.C. 2917.31(A)(2) is a misdemeanor

of the first degree. However, pursuant to R.C. 2917.31(C)(3), Inducing Panic is a

felony of the fourth degree if, as was indicted here, the violation results in physical

harm to any person.

The verdict form for Count 5 read:

We, the jury in this case, being duly impaneled and sworn, find the Defendant, Teddy Gene Thomas, III *GUILTY on the offense of Inducing Panic [R.C. 2917.31(A)(2)] as charged in Count 5 of the Indictment.

(Brackets in original.) (Docket No. 175).

{¶17} Because the verdict forms for Count 4 and Count 5 did not set forth

the additional enhancing, or aggravating, elements of the indicted offenses, nor did

the verdict forms indicate the degree of the offense charged, Thomas asserts that he

could only be properly convicted of the lowest forms of those two offenses, pursuant

to R.C. 2945.75 and State v. Pelfrey, 2007-Ohio-256.

R.C. 2945.75(A)(2) provides the following with regard to 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.

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{¶18} In State v. Pelfrey, 2007-Ohio-256, the Supreme Court of Ohio

considered the effect of noncompliance with R.C. 2945.75(A)(2). In that case,

Pelfrey was convicted of Tampering with Records, a third-degree felony in violation

of R.C. 2913.42(A)(1) and (B)(4). Id., at ¶ 3. Pursuant to R.C. 2913.42(B)(3)(a),

Tampering with Records in violation of R.C. 2913.42(A)(1) is a misdemeanor of

the first degree; however, pursuant to R.C. 2913.42(B)(4), if the records at issue are

kept by or belong to a governmental entity, that additional element elevates the

crime to a felony of the third degree.

{¶19} In Pelfrey, the defendant was indicted with the third-degree felony

version of Tampering with Records, with the charge including the enhancing

“government records” language from R.C. 2913.42(B)(4). Pelfrey, ¶ 3; see, also,

State v. Pelfrey, 2d Dist. Montgomery No. 19955, 2005-Ohio-5006. ¶ 10. However,

at trial, the verdict form for that charge merely stated:

We, the jury, upon the issues joined in this case, do find the Defendant, David L. Pelfrey, Guilty of the offense of Tampering With Records as charged in the indictment.

Id. {¶20} On appeal, Pelfrey argued that the verdict form did not comply with

R.C. 2945.75(A)(2) and thus the conviction had to be reduced to the lowest degree

of the offense, a first-degree misdemeanor. Pelfrey, 2007-Ohio-256, ¶ 4. The

Supreme Court of Ohio agreed, even though Pelfrey had not objected to or raised

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the adequacy of the verdict form at trial, and even though the verdict form

incorporated by reference the offense charged in the indictment. Id., at ¶ 1.

{¶21} Thus, in Pelfrey, the Supreme Court of Ohio held that even in a plain

error review, a verdict form must include the aggravating element or the degree of

the offense, as specified in R.C. 2945.75, and a verdict form that does not comply

with R.C. 2945.75 cannot be cured by overwhelming evidence of the enhancing

element or incorporation of language from the indictment. Pelfrey, ¶ 14. The

Supreme Court of Ohio reasoned that R.C. 2945.75 was clear and complete and

“[t]he statutory requirement certainly imposes no unreasonable burden on lawyers

or trial judges.” Id. at ¶¶ 11-12.

{¶22} In the prior appeal in this case, we reversed Thomas’s convictions on

Counts 4 and 5 on the basis of Pelfrey and on the basis of a subsequent decision of

the Supreme Court of Ohio, State v. McDonald, 2013-Ohio-5042.2 Based on Pelfrey

and McDonald, we found that the verdict forms on Counts 4 and 5 in this case were

erroneous, that the error was reversible, and that the convictions on those two counts

had to be reduced to the lowest forms of the offenses charged. In light of Pelfrey

and McDonald, our holding in the prior appeal was not impacted by the fact that

Thomas had lodged no objection at trial to the verdict forms at issue.

2 In McDonald, the Ohio Supreme Court stated that “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.” (Emphasis added.) State v. McDonald, 2013-Ohio-5042, ¶ 17.

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{¶23} However, with the release of State v. Mays, 2024-Ohio-4616, on

September 25, 2024, the Supreme Court of Ohio has now held that, in the absence

of an objection to deficiencies in a verdict form of the type at issue here, a plain-

error review may be applied on appeal. Id., at ¶ 26.

{¶24} As the Ohio Supreme Court noted in Mays, three elements must be

met in order to find reversible error in a plain-error review. Mays, supra, at ¶ 27.

Specifically, “[t]here must first be a deviation from a legal rule, that deviation must

be an obvious defect in trial proceedings, and the deviation must have affected

substantial rights.” Id.

{¶25} In the instant case, there was a deviation from a legal rule, as the

verdict forms for Counts 4 and 5 did not comply with R.C. 2945.75(A)(2).

However, Thomas did not object to the error, and we find that the error in those

verdict forms did not affect Thomas’s substantial rights.

{¶26} In that regard, we take note of the detailed summary of the evidence

presented at trial that was set forth in our initial decision in this case, and incorporate

the same here by reference. As to Count 4, the charge of Domestic Violence,

undisputed evidence established at trial that, in addition to committing the domestic

violence offense at issue, Thomas had previously been convicted of an offense of

violence and that the victim of the prior offense was family or household member

at the time. As to Count 5, the charge of Inducing Panic, uncontroverted evidence

established that Thomas’s course of conduct on the night in question resulted in the

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commission of the offense of Inducing Panic and that, in so doing, physical harm

was caused by him to the mother of his children, Brittany G.

{¶27} Moreover, we note that the trial court instructed the jury on all

elements of the indicted offenses in Counts 4 and 5, including the aggravating

elements, and the jury was instructed that they must find those elements to have

been proven beyond a reasonable doubt before Thomas could be found guilty of the

indicted offenses in those counts. We also note that the verdict forms for Counts 4

and 5 incorporated, by reference, the fact that the verdicts were based on the crimes

“as charged in the indictment”.

{¶28} Accordingly, upon applying the plain-error review now permitted by

State v. Mays, supra, we find that plain error did not occur in this case as a result of

the incomplete verdict forms on Counts 4 and 5.

{¶29} The sixth assignment of error is overruled.

Conclusion

{¶30} Having found no error prejudicial to Thomas in the particulars

assigned and argued, the judgment of the Marion County Court of Common Pleas

is affirmed.

ZIMMERMAN and WILLAMOWSKI, J.J., concur.

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