[Cite as State v. Reynolds, 2020-Ohio-942.]

IN THE COURT OF APPEALS 

FIRST APPELLATE DISTRICT OF OHIO 

HAMILTON COUNTY, OHIO 

STATE OF OHIO, 

 Plaintiff-Appellee, 

 vs. 

DANIEL REYNOLDS, 

 Defendant-Appellant. 

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: 

: 

: 

: 

APPEAL NO. C-190055 

TRIAL NO. B-1805852 

O P I N I O N.

 

Criminal Appeal From: Hamilton County Court of Common Pleas 

 

Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause 

 Remanded 

Date of Judgment Entry on Appeal: March 13, 2020 

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Adam Tieger,

Assistant Prosecuting Attorney, for Plaintiff-Appellee, 

Timothy J. McKenna., for Defendant-Appellant. 
OHIO FIRST DISTRICT COURT OF APPEALS

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ZAYAS, Judge. 

{¶1} Daniel Reynolds appeals his sentence, after a no-contest plea, for 

failure to stop after an accident. In his sole assignment of error, Reynolds contends 

that the trial court erred by sentencing him to prison after erroneously concluding 

that he had caused physical harm while committing the offense. We agree, and 

reverse the judgment of the trial court as to the sentence imposed and remand the 

cause for resentencing consistent with this opinion. 

Factual Background 

{¶2} Daniel Reynolds pled no contest to a violation of R.C. 4549.02 for 

failing to stop after an accident. The offense was a felony of the fourth degree under 

R.C. 4549.02(B)(2)(b) because the “accident or collision resulted in serious physical 

harm to a person” and “the offender knew that the accident or collision resulted in 

serious physical harm to a person.” 

{¶3} The charges stemmed from Reynolds hitting Deputy Curtis Taylor, a 

sheriff’s deputy who was directing traffic on Hamilton Avenue. After the collision, 

Reynolds left the scene without stopping. Deputy Taylor sustained serious injuries 

as a result. 

{¶4} At the sentencing hearing, the state requested that the court impose a 

maximum penalty due to the severity of the injuries to Deputy Taylor. The trial court 

sentenced Reynolds to 18 months’ incarceration, the maximum penalty for a fourthdegree felony. 

Law and Analysis 

{¶5} In his sole assignment of error, Reynolds argues that the sentence is 

contrary to law because R.C. 2929.13(B)(1)(a) does not authorize a prison term for 

Reynolds who had not been previously convicted of a felony, his most serious charge 
OHIO FIRST DISTRICT COURT OF APPEALS

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was a felony of the fourth degree, and he had not been convicted of a misdemeanor 

offense of violence within the past two years. Additionally, he could not be sentenced 

to a prison term under R.C. 2929.13(B)(1)(b) which allows a prison term when “the 

offender caused physical harm to another person while committing the offense.” 

{¶6} In reviewing felony sentences, appellate courts must apply the 

standard of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 9. Under R.C. 2953.08(G)(2), an appellate 

court may increase, reduce, or modify a sentence, or it may vacate the sentence and 

remand for resentencing, only if it “clearly and convincingly” finds either (1) that the 

record does not support certain specified findings or (2) that the sentence imposed is 

contrary to law. 

{¶7} Under R.C. 4549.02, a driver involved in an accident is required to 

stay at the scene until he or she has given his or her name, address, and registration 

number to the other driver, to any injured party, or to a police officer. R.C. 

4549.02(A)(1). A person who fails to do this is guilty of failure to stop after an 

accident. R.C. 4549.02(B)(1). Where, as here, the accident resulted in serious 

physical harm, and the offender knew that the accident resulted in serious physical 

harm, the offense is a fourth-degree felony. R.C. 4549.02(B)(2)(b). 

{¶8} R.C. 2929.13(B)(1)(a) requires the court to impose a communitycontrol sanction for a felony of the fourth degree when all of the following conditions 

are met: (i) the offender previously has not been convicted of or pleaded guilty to a 

felony offense; (ii) the most serious charge against the offender at the time of 

sentencing is a felony of the fourth or fifth degree; (iii) if the court made a request of 

the department of rehabilitation and correction pursuant to division (B)(1)(c) of this 
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section, the department, within the 45-day period specified in that division, provided 

the court with the names of, contact information for, and program details of one or 

more community-control sanctions that are available for persons sentenced by the 

court; (iv) and the offender previously has not been convicted of or pleaded guilty to 

a misdemeanor offense of violence that the offender committed within two years 

prior to the offense for which sentence is being imposed. 

{¶9} Both parties agree that Reynolds satisfies the requirements of R.C. 

2929.13(B)(1)(a). But, a prison term can still be imposed if the court finds that any 

of the exceptions in R.C. 2929.13(B)(1)(b) apply. The only relevant exception is if 

“the offender caused physical harm to another person while committing the offense.” 

R.C. 2929.13(B)(1)(b)(ii). In this case, the court applied the exception to Reynolds 

and imposed a prison term. 

{¶10} This court has already determined that the record must establish that 

the physical harm was caused by the failure to stop and not by the accident or 

collision in order to impose a prison term. See State v. Jones, 1st Dist. Hamilton No. 

C-140299, 2015-Ohio-1189, ¶ 14. However, the state requests that this court 

reconsider the result reached in Jones and hold that the serious physical harm was 

caused by the continuing course of conduct of causing the accident that resulted in 

serious physical harm, and then fleeing the scene.

{¶11} We decline the state’s request. The state’s interpretation would 

require this court to insert words into the statute that the legislature did not. See 

State v. Belcher, 2d Dist. Clark No. 2018-CA-70, 2019-Ohio-1468, ¶ 21 (explaining 

that “[i]f the legislature intended for the exception in R.C. 2929.13(B)(1)(b)(ii) to 

apply to situations like the present case, it chose the wrong language. It should have 
OHIO FIRST DISTRICT COURT OF APPEALS

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specified that in cases involving a fifth-degree [or fourth-degree] felony offense of 

failure to stop after an accident, the physical harm need not arise from the offense 

itself, but from the related accident.”). Accordingly, we sustain Reynolds’s sole 

assignment of error.

Conclusion 

{¶12} Finding merit to Reynolds’s assignment of error, we reverse the 

judgment of the trial court as to the sentence imposed and remand the cause for 

resentencing. The court’s judgment is affirmed in all other respects. 

Judgment affirmed in part, reversed in part, and cause remanded. 

BERGERON, J., concurs. 

MOCK, P.J., dissents. 

MOCK, P.J., dissenting.

{¶13} I recognize that the outcome in this case is controlled by this court’s 

decision in State v. Jones, 1st Dist. Hamilton No. C-140299, 2015-Ohio-1189. But I 

believe that Jones was wrongly decided. The state has requested that we revisit that 

decision, and I believe that we should. 

{¶14} In Jones, the defendant was charged with failure to stop or exchange 

information after an accident when her sport utility vehicle struck a motorcycle 

seriously injuring the driver. Jones was charged with the offense as a fifth-degree 

felony. The trial court accepted her guilty plea and sentenced her to 12 months in 

prison. On appeal, this court concluded that a prison sentence was not available. 

The court noted that, generally, a nonviolent felony of the fifth degree is 

presumptively punishable by community control. The court noted that 

The presumption of a community-control sanction, however, is subject 

to the exceptions listed in R.C. 2929.13(B)(1)(b). The exception that 
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the trial court found applicable in this case, R.C. 2929.13(B)(1)(b)(ii), 

permits a court, in its discretion, to impose a term of imprisonment for 

a nonviolent fifth-degree felony after finding that “the offender caused 

physical harm to the victim while committing the offense.” (Emphasis 

added.) See State v. Barnes, 11th Dist. Trumbull No. 2012-T-0049, 

2013-Ohio-1298, ¶ 16; see also [State v. Hamilton, 1st Dist. Hamilton 

No. C-140290, 2015-Ohio-334, ¶ 10-11]. 

Id. at ¶ 10. The court began by setting forth Jones’s position: 

Jones contends that her sentence was contrary to law because the 

record before the trial court failed to demonstrate that Jones had 

caused any physical harm, beyond the injuries inflicted in the actual 

collision, while committing the punished offense of failure to stop or to 

exchange information. Jones argues that the victim's serious injuries 

were inflicted by the collision itself, and that there was no evidence in 

the record that anything she did or failed to do after the accident 

caused physical harm to the victim. 

Id. at ¶ 11. The state’s counterargument was that the severity of the victim’s injury 

was exacerbated by the fact that Jones’s failure to stop and contact authorities 

delayed an emergency medical response. But the court found no evidence of this in 

the record. Without further analysis, the court concluded: 

In this case, the requirements of R.C. 2929.13(B)(1)(a) were met. 

Jones was presumptively ineligible for a prison term for the fifthdegree felony of failure to stop, which was not an offense of violence or 

a qualifying assault offense. On the state of the record before us, 
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however, we clearly and convincingly find that the record does not 

support the trial court's determination that Jones had caused physical 

harm to the victim while committing the offense of failure to stop. 

There is no evidence to support a finding that the exception in R.C. 

2929.13(B)(1)(b)(ii) applied to Jones. Thus, the sentence was contrary 

to law. See Hamilton, 1st Dist. Hamilton No. C-140290, 2015-Ohio334, at ¶ 16. 

Id. at ¶ 14. 

{¶15} The problem with this analysis is how the Jones court defined the 

offense. R.C. 2929.13(B)(1)(b) gives the trial court the discretion to impose a prison 

term if “the offender caused serious physical harm to another person while 

committing the offense.” (Emphasis added.) R.C. 2929.13(B)(1)(b)(ii). The Jones

court limited its definition of the offense to failing to stop and exchange information 

after an accident. But that is the offense as a misdemeanor of the first degree. The 

offense becomes a felony when the accident or collision results in serious physical 

harm to a person. See R.C. 4549.02(B)(2). And that elevation changes the analysis 

entirely. 

{¶16} When an element of a statute raises the degree of an offense, that 

element becomes an essential element of the offense. See State v. Allen, 29 Ohio 

St.3d 53, 54, 506 N.E.2d 199 (1987). The Ohio Supreme Court in Allen, addressing 

the effect of a prior OVI conviction, concluded that “the fact of a prior conviction did 

not simply enhance the penalty. It transformed the crime itself by increasing its 

degree. In such a case, the prior conviction is an essential element of the crime and 

must be proved by the state.” Id. Thus, elements that elevate the degree of offense 
OHIO FIRST DISTRICT COURT OF APPEALS

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change the nature of the crime at a definitional level. As the Supreme Court later 

described it, the enhancement “transforms the crime itself by increasing the degree.” 

State v. Brooke, 113 Ohio St.3d 199, 2007-Ohio-1533, 863 N.E.2d 1024, ¶ 8. 

{¶17} This can also be seen in this state’s jurisprudence relating to the 

amendment of indictments. As the Ohio Supreme Court has held, 

Under Crim.R. 7(D), a court may amend an indictment “at any time” if 

the amendment does not change “the name or identity of the crime 

charged.” We consider whether an amendment that changes the 

penalty or degree of a charged offense is permissible under Crim.R. 

7(D). We hold that Crim.R. 7(D) does not permit the amendment of an 

indictment when the amendment changes the penalty or degree of the 

charged offense, because such a change alters the identi[t]y of the 

offense. 

State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, ¶ 1. As the 

Fourth Appellate District noted, amending an indictment in such a way that the 

degree of the offense is increased is impermissible because “the amendment 

effectively changes the identity of the crime in violation of Crim.R. 7(D).” State v. 

Davis, 4th Dist. Highland No. 06CA26, 2007-Ohio-2249, ¶ 24; see State v. Jones, 

2015-Ohio-4116, 43 N.E.3d 833, ¶ 125 (2d Dist.); State v. Shockey, 2019-Ohio-2417, 

139 N.E.3d 486 (9th Dist.). 

{¶18} In Jones, the defendant could not have been tried for the offense as a 

felony unless the indictment indicated that the accident she fled from caused serious 

physical harm. Adding that allegation not only elevated the penalty for the crime, 

but it altered the identity of the offense. Similarly, if the state had failed to prove that 
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there had been serious physical harm as a result of the accident, Jones could not 

have been convicted because that allegation not only elevated the penalty for the 

crime, but it became an essential element that the state had to prove beyond a 

reasonable doubt. 

{¶19} I recognize that the Second Appellate District has rejected this 

argument. In adopting the rationale of the Jones decision, the court stated: 

The State maintains that the decision in Jones was incorrect because 

serious physical harm is an element of the failure to stop offense as a 

fifth-degree felony. The State’s argument is flawed, however, because 

the felony enhancement element of R.C. 4549.02 provides that the 

offense becomes a fifth-degree felony if “the accident or collision

results in serious physical harm to a person[.]” (Emphasis added.) R.C. 

4549.02(B)(2)(a). The statute does not state that the offense becomes 

a fifth-degree felony if the failure to stop caused serious physical harm. 

Therefore, serious physical harm flowing from the failure to stop is 

not an element of the offense. In turn, a conviction for fifth-degreefelony failure to stop does not by itself support a finding that the 

offense caused physical harm. Rather, there must be some evidence 

that the failure to stop offense resulted in further physical injury 

beyond what was sustained in the accident. 

(Emphasis sic.) State v. Belcher, 2d Dist. Clark No. 2018-CA-70, 2019-Ohio-1468, ¶ 

19. The foundation of the court’s analysis is the statement that “[t]he statute does 

not state that the offense becomes a fifth-degree felony if the failure to stop caused 

serious physical harm.” But by beginning its discussion in this way, the Second 
OHIO FIRST DISTRICT COURT OF APPEALS

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District assumed its own conclusion—that the “offense” at issue was limited to 

leaving the scene of an accident. But the “offense”—once elevated to the felony 

level—is not mere flight. It is flight from an accident after having caused serious 

physical harm. 

{¶20} With the allegation of serious physical harm, the very identity of the 

offense changed. The crime of leaving the scene of an accident, as a fourth-degree 

felony, cannot as a matter of law be completed without the offender causing serious 

physical harm and knowing about that harm prior to flight. Under Ohio law, there 

simply is no “failure to stop offense” that is a felony that does not result in serious 

physical harm. 

{¶21} Since the felony version of fleeing the scene of an accident requires 

proof that the defendant caused serious physical harm, and a conviction thereon 

cannot be obtained without proof of such harm, the course of committing the fleeing 

the scene of an accident begins with the accident and injury and is complete when 

the defendant flees. I believe that any other reading of the statute is inconsistent 

with how our jurisprudence treats elements that increase the degree of an offense, 

and it is a distinction that the Jones court failed to consider. For this reason, I would 

overrule our prior decision in Jones, conclude that the trial court had the discretion 

to impose a prison term in this case, and affirm the judgment of the trial court. 

 

Please note: 

 The court has recorded its own entry on the date of the release of this opinion.