[Cite as State v. Mayo, 2017-Ohio-1249.]

COURT OF APPEALS 

KNOX COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsMICHAEL MAYO 

 Defendant-Appellant 

JUDGES: 

: Hon. W. Scott Gwin, P.J. 

: Hon. William B. Hoffman, J. 

: Hon. Earle E. Wise, J. 

: 

: 

: Case No. 16CA26 

: 

: 

: O P I N I O N 

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-Ohio4277, 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-CA39, 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 previouslyfiled 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