[Cite as State v. Vanfossen, 2022-Ohio-4022.]

Atty. Steven D. Barnett, Carroll County Prosecutor and Atty. Michael J. Roth, Assistant 

Prosecutor, 7 East Main Street, Carrollton, Ohio 44615 for Plaintiff-Appellee and

Atty. Jeffrey Jakmides, Atty. Julie Jakmides Mack, 325 East Main Street, Alliance, Ohio 

44601 for Defendant-Appellant.

Dated: 

October 27, 2022

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT

CARROLL COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

BRUCE A. VANFOSSEN,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 21 CA 0953

Criminal Appeal from the

Court of Common Pleas of Carroll County, Ohio

Case No. 2021 CR 06572

BEFORE:

Gene Donofrio, Carol Ann Robb, David A. D’Apolito, Judges.

JUDGMENT:

Reversed, Vacated, and Remanded
– 2 –

Case No. 21 CA 0953

Donofrio, P. J.

{¶1} Defendant-Appellant, Bruce VanFossen, appeals from a Carroll County 

Common Pleas Court judgment convicting him of four counts of gross sexual imposition 

following a bench trial. 

{¶2} On May 25, 2020, a Memorial Day party was held in Carroll County. K.T., 

who was 11 years old at the time, and H.T., who was 15 years old at the time, attended 

the party with their sister R.T., their father, their stepmother, and H.T.’s friend J.C. The 

partygoers were all friends and their families. Appellant was at the party with his wife and 

her children. During the party, people went “mudding” by driving vehicles off-road through 

large mud puddles. 

{¶3} During one of these mudding runs, K.T. was in the backseat of a vehicle 

next to appellant. K.T. alleged that while they were mudding, appellant put his hand inside 

of her tank top and sports bra and touched her breast and then touched her thigh. H.T. 

alleged that during another of the mudding runs, she was seated in the backseat of a 

vehicle next to appellant and he moved his hand from her shoulder and into her shirt. 

H.T. then crossed her arms to prevent appellant from putting his hand onto her breast. 

Later that night, the girls told each other and their other sister what had happened. They 

then told their father and stepmother. An argument ensued among the adults and the 

sheriff’s department was called. 

{¶4} A.D. is appellant’s stepdaughter. She was also at the Memorial Day party. 

A.D. goes to school with H.T. and K.T. She heard about the allegations at the party but 

did not witness anything. Later, A.D. disclosed to her counselor that appellant had 

touched her inappropriately. Specifically, A.D. alleged that appellant touched her on three 

different occasions. A.D. reported that: appellant had put his hand down her pants while 

she was alone with him in his truck; appellant put his hand under her shirt and touched 

her breast while they were sitting on the couch; and appellant again put his hand under 

her shirt and touched her breast when she had fallen asleep watching television. 

{¶5} On January 6, 2021, a Carroll County Grand Jury indicted appellant on 

four counts of gross sexual imposition, third-degree felonies in violation of R.C. 

2907.05(A)(4), and one count of sexual imposition, a third-degree misdemeanor in 

violation of R.C. 2907.06(A)(4). Appellant entered a not guilty plea. 
– 3 –

Case No. 21 CA 0953

{¶6} The matter was initially set for a jury trial. But three days before trial was 

set to commence, appellant filed a written waiver of jury trial. 

{¶7} The matter proceeded to a bench trial on August 16 and 17, 2021. The trial 

court found appellant guilty of the four counts of gross sexual imposition but not guilty of 

the single count of sexual imposition. It then set the matter for a sentencing hearing. 

{¶8} At the August 23, 2021 sentencing hearing, the court sentenced appellant 

to 24 months in prison on each of the four counts to be served consecutively for a total 

sentence of 96 months. The court also classified appellant as a Tier II Sexually Oriented 

Offender. 

{¶9} Appellant filed a timely notice of appeal on September 16, 2021. He now 

raises three assignments of error.

{¶10} Appellant’s first assignment of error states:

DEFENDANT BRUCE VANFOSSEN WAS DENIED DUE 

PROCESS OF LAW AS GUARANTEED BY THE FIFTH, SIXTH AND 

FOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION AND 

ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO CONSTITUTION WHEN 

AN INVALID WAIVER OF JURY TRIAL WAS ACCEPTED BY THE 

COURT.

{¶11} Appellant argues the trial court failed to properly ensure in open court that 

he was waiving his right to a jury trial. He points out that the entire conversation regarding 

the waiver of his right to a jury trial was between his counsel and the court. He claims the 

trial court was required to, and failed to, address him personally to confirm that he in fact 

wished to waive his right to a jury trial. 

{¶12} The Sixth Amendment to the United States Constitution and Section 10, 

Article I, of the Ohio Constitution provide criminal defendants with the right to a jury trial. 

Crim.R. 23(A) provides that “[i]n serious offense cases the defendant before 

commencement of the trial may knowingly, intelligently and voluntarily waive in writing his 

right to trial by jury.” 

{¶13} R.C. 2945.05 addresses the manner of the waiver of the right to a jury trial:
– 4 –

Case No. 21 CA 0953

In all criminal cases pending in courts of record in this state, the 

defendant may waive a trial by jury and be tried by the court without a jury. 

Such waiver by a defendant, shall be in writing, signed by the defendant, 

and filed in said cause and made a part of the record thereof. It shall be 

entitled in the court and cause, and in substance as follows: “I __________, 

defendant in the above cause, hereby voluntarily waive and relinquish my 

right to a trial by jury, and elect to be tried by a Judge of the Court in which 

the said cause may be pending. I fully understand that under the laws of 

this state, I have a constitutional right to a trial by jury.”

Such waiver of trial by jury must be made in open court after the 

defendant has been arraigned and has had opportunity to consult with 

counsel. Such waiver may be withdrawn by the defendant at any time before 

the commencement of the trial.

{¶14} Thus, pursuant to the statute, the waiver must be made both in writing and 

in open court. 

{¶15} In addressing what constitutes a valid waiver, the Ohio Supreme Court 

has construed R.C. 2945.05 to require that five conditions be met in order for a waiver to 

be validly imposed. 

The waiver must be (1) in writing, (2) signed by the defendant, (3) filed, (4)

made part of the record, and (5) made in open court. See State v. Lomax, 

114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9. Trial courts must 

strictly comply with the requirements of R.C. 2945.05. State v. Pless (1996), 

74 Ohio St.3d 333, 337, 339, 658 N.E.2d 766; State ex rel. Jackson v. 

Dallman (1994), 70 Ohio St.3d 261, 262, 638 N.E.2d 563. “In the absence 

of strict compliance with R.C. 2945.05, a trial court lacks jurisdiction to try 

the defendant without a jury.” Pless at 337, 658 N.E.2d 766.

(Emphasis added); State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d 

905 (10th Dist.), ¶ 11.
– 5 –

Case No. 21 CA 0953

{¶16} In this case, appellant signed a Notice to the Court stating that he was 

waiving his right to a jury trial and wished to proceed to a bench trial. (August 13, 2021 

DEFENDANT’S NOTICE TO THE COURT). This notice also provided that appellant was 

waiving “his right to a jury trial of his own free will, not under duress, and had had all of 

his questions answered regarding this.” (August 13, 2021 DEFENDANT’S NOTICE TO 

THE COURT). 

{¶17} There is no dispute that appellant signed a written jury waiver and that the 

written waiver was made part of the record by filing it in the trial court. Thus, the trial court 

strictly complied with the first four conditions of R.C. 2945.05 and Lomax. The dispute 

here is whether the trial court complied with the fifth condition.

{¶18} The following colloquy took place between appellant’s counsel and the 

court just prior to trial:

THE COURT: * * * Mr. Guinn [defense counsel] you have filed a 

Notice of and Intent to the Court, so please tell me about that?

ATTY GUINN: Thank you, Your Honor. In conversation with my 

client and we had met last week about doing a bench trial or a jury trial. 

After discussion, he’s agreed to waive his right to a jury trial and would 

rather have a bench trial in this matter. So, I filed that and he signed it.

THE COURT: Okay. And he’s done that through his own free will?

ATTY GUINN: Yes. Yes, he has.

THE COURT: Not under duress or any other circumstances, it’s just 

the type of trial he wants. Correct?

ATTY GUINN: Correct. We discussed it and he agreed. So. . . 

THE COURT: Okay. Very good. Then that’s what we will do.

(8/16/21 Tr. 3).

{¶19} This was the extent of the discussion of appellant’s waiver. The trial court 

did not once address appellant on the issue.
– 6 –

Case No. 21 CA 0953

{¶20} The trial court need not engage in a lengthy colloquy with the defendant. 

For instance, in Sanders, the Tenth District found that when the trial court stated to the 

appellant in open court, “[I]t is my understanding that you have waived your right to a jury 

trial and would like to have the court decide this case,” and the appellant replied, “yes”, 

this satisfied the minimum requirements of R.C. 2945.05 and Lomax. 188 Ohio App.3d 

452, at ¶ 13.

{¶21} But the court must address the defendant, however briefly, in open court 

and get a response in return. 

{¶22} In State v. Banks, 10th Dist. Franklin No. 18AP-808, 2019-Ohio-5440, ¶ 

24, the transcript did not reflect any colloquy between the court and the appellant 

regarding the waiver of jury trial. The transcript did contain numerous references to the

appellant's waiver of a jury trial, but the record did not show that the trial court personally 

addressed appellant about the waiver. Id. Additionally, the transcript did not show that 

the appellant orally acknowledged, in open court, that he wished to waive the right to a 

jury trial. Id. The Tenth District found, that pursuant to Ohio Supreme Court case law, an 

oral acknowledgement by the defendant in open court that he or she wishes to waive the 

right to a jury trial is required in order to comply with the requirements of R.C. 2945.05 for 

the jury waiver to be valid. Id. at ¶ 25. Because the record in that case did not reveal any 

such acknowledgment by appellant, the appellate court found the trial court did not strictly 

comply with the requirements of R.C. 2945.05, and the jury waiver was invalid. Id. Thus, 

it concluded, the trial court did not have jurisdiction to conduct a bench trial on the charge. 

Id. 

{¶23} And in State v. Burnside, 186 Ohio App.3d 733, 2010-Ohio-1235, 930 

N.E.2d 372 (2d Dist.), the appellate court found that even though the trial court conducted 

a colloquy in-chambers with the appellant in which the trial court took care to ensure the 

appellant understood his right to a jury trial, understood the risk of having one person 

rather than a group of 12 determine the verdict, and made a knowing, intelligent, and 

voluntary waiver of his right to a jury trial, this did not satisfy the “in open court” 

requirement. The Second District stated: 

The right to a jury trial in a felony criminal case is a fundamental right. We 

are mindful that a defendant could “sandbag” the court, but the legislature 
– 7 –

Case No. 21 CA 0953

has concluded, and the Ohio Supreme Court has agreed, that a jury waiver 

(or at least its acknowledgment) must be in open court. In this particular 

case, we have no doubt that Burnside waived a jury and agreed to be tried 

by the court, but the “in open court” rule is prophylactic and designed to 

protect all defendants, not just this one. Considering that the written waiver 

need not be signed in open court and the trial court need not engage in an 

extensive discussion with a defendant, it is not difficult for a trial court to 

comply with the open-court requirement.

Id. at ¶ 73. 

{¶24} In finding the trial court’s brief conversation with the defendant regarding 

his waiver of the right to a jury trial to be sufficient, this court stated:

[T]he law simply requires there to be some evidence in the record that the 

defendant while in the courtroom and in the presence of counsel, if any, 

acknowledged that he wishes to waive the right to a jury trial. Lomax, 114 

Ohio St.3d 350 at ¶ 48-49. This does not require a specific reference to the 

written waiver. All that is necessary to satisfy the open court requirement of 

R.C. 2945.05 is for the defendant to inform the trial judge in open court that 

he was waiving his right to a jury trial.

State v. Kelly, 7th Dist. Mahoning No. 14 MA 100, 2015-Ohio-2588, ¶ 24.

{¶25} Finally, it should be noted that the fact that the defendant did not object to 

the court proceeding with a bench trial is of no consequence. State v. Grier, 2d Dist. 

Montgomery No. 23662, 2010-Ohio-5751, ¶ 15, citing State v. Tate, 59 Ohio St.2d 50, 53, 

391 N.E.2d 738 (1979). “‘Silent acquiescence to a bench trial is not sufficient to constitute 

a waiver of a defendant's right to a jury trial.’” Id., quoting Tate, 59 Ohio St.2d at 53.

{¶26} Given the above, the trial court here erred in not addressing appellant in 

open court regarding his purported jury trial waiver. The court failed to strictly comply 

with R.C. 2945.05. In the absence of strict compliance with R.C. 2945.05, the trial court 

lacked jurisdiction to try appellant without a jury.
– 8 –

Case No. 21 CA 0953

{¶27} Accordingly, appellant’s first assignment of error has merit and is 

sustained. 

{¶28} Appellant’s second assignment of error states:

THE TRIAL COURT ERRED BY NOT DECLARING A MISTRIAL 

WHEN COURTROOM SPECTATORS WERE SEEN MAKING COACHING 

GESTURES TO THE ALLEGED VICTIM AS SHE WAS TESTIFYING. 

{¶29} Appellant’s third assignment of error states:

THE JUDGMENT AND VERDICT OF THE TRIAL COURT ARE 

AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. 

{¶30} Given our resolution of appellant’s first assignment of error, his second 

and third assignments of error are rendered moot. 

{¶31} For the reasons stated above, the trial court’s judgment is hereby 

reversed. Appellant’s conviction and sentence are vacated and this matter is remanded 

for a new trial.

Robb, J., concurs.

D’Apolito, J., concurs.
[Cite as State v. Vanfossen, 2022-Ohio-4022.]

For the reasons stated in the Opinion rendered herein, the first assignment of error 

is sustained. The second and the third assignments of error are moot. It is the final 

judgment and order of this Court that the judgment of the Court of Common Pleas of 

Carroll County, Ohio, is reversed and vacated. We hereby remand this matter to the trial 

court for further proceedings according to law and consistent with this Court’s Opinion. 

Costs to be taxed against the Appellee.

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.