[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. :

:

:

:

: 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

2 Z AYAS , 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 hi m 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 acc ident. 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 in juries to Deputy Taylor. The trial courtsentenced 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 pr eviously convicted of a felony, his most serious chargeOHIO FIRST DISTRICT COURT OF APPEALS

3 was a felony of the fourth degree, and he had not been convicted of a misdemeanor offense of violence within the past two year s. 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 find ings or (2) that the sentence imposed is contrary to law. 

### {¶7} Under R.C. 4549.02, a dr iver involved in an a ccident 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 a ll 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 char ge 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 correct ion pursuant to division (B)(1)(c) of thisOHIO FIRST DISTRICT COURT OF APPEALS

4 section, the department, within the 45-day pe riod specified in that division, provided the court with the names of, contact inform ation for, and program details of one or more community-control sanctions that ar e 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 sa tisfies the requirements of R.C. 2929.13(B)(1)(a). But, a pris on term can still be imposed if the court finds that any of the exceptions in R.C. 29 29.13(B)(1)(b) apply. The on ly 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, th e court applied the exception to Reynolds and imposed a prison term. 

### {¶10} This court has already determined th at the record must establish that the physical harm was caused by the fail ure to stop and not by the accident or

collision in order to im pose 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 th e 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 in tended 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 haveOHIO FIRST DISTRICT COURT OF APPEALS

5 specified that in case s involving a fifth-degree [or fo urth-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 se ntence 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.

B ERGERON , J. , concurs. M OCK , P.J. , dissents.

M OCK , 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 ha s 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 sp ort 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-contr ol sanction, however, is subject to the exceptions listed in R.C. 2929.13(B)(1)(b). The exception thatOHIO FIRST DISTRICT COURT OF APPEALS

6 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 fail ed to demonstrate that Jones had caused any physical harm, beyond th e injuries inflicted in the actual collision, while committing the punished offense of failure to stop or to exchange information. Jo nes 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. Bu t 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,OHIO FIRST DISTRICT COURT OF APPEALS

7 however, we clearly and convincingly find that the record does not support the trial court's determinatio n 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 disc retion 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, conclude d 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 offenseOHIO FIRST DISTRICT COURT OF APPEALS

8 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 amen d 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 o ffense 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, amendin g an indictment in such a way that the degree of the offense is increased is impermissible because “the amendment effectively changes the iden tity of the crime in viol ation of Crim.R. 7(D).” State v.

Davis , 4th Dist. Highland No. 06 CA26, 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 be en tried for the offense as a felony unless the indictment in dicated 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 thatOHIO FIRST DISTRICT COURT OF APPEALS

9 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 th at 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 isnot 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 SecondOHIO FIRST DISTRICT COURT OF APPEALS

10 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 physic al 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 comp leted without the offender causing serious physical harm and knowing about that harm prior to flight. Un der 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 ju dgment of the trial court.

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