[Cite as State v. Jones, 2013-Ohio-5889.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ADAMS COUNTY 

STATE OF OHIO, : Case No. 13CA960 

 : 

Plaintiff-Appellee, : 

: DECISION AND 

v. : JUDGMENT ENTRY

 : 

KATHY JONES, : 

 : RELEASED: 12/20/13 

 Defendant-Appellant. : 

______________________________________________________________________ 

APPEARANCES: 

Timothy Young, Ohio Public Defender, and Kristopher A. Haines, Ohio Assistant Public 

Defender, Columbus, Ohio, for appellant. 

C. David Kelley, Adams County Prosecuting Attorney, and Kris D. Blanton, Adams 

County Assistant Prosecutor, West Union, Ohio, for appellee. 

______________________________________________________________________ 

Harsha, J. 

{¶1} Kathy Jones appeals her third-degree felony conviction for illegal 

conveyance of weapons or other prohibited items onto the grounds of a detention facility 

or institution, in violation of R.C. 2921.36(A)(2). Jones argues that the trial court erred 

by entering a judgment of conviction against her for a third-degree felony because the 

jury’s verdict form did not state the degree of the offense or the aggravating element, as 

required by R.C. 2945.75(A)(2). Therefore, she contends that she could only be 

convicted of the least degree of the offense charged, a second-degree misdemeanor. 

{¶2} However, R.C. 2945.74(A)(2) only applies when the presence of one or 

more additional elements makes an offense one of more serious degree. Here, the jury 

found Jones guilty of illegal conveyance in violation of R.C. 2921.36(A)(2). Under R.C. 

2921.36(G)(2), a violation of subsection (A)(2) can only result in a third-degree felony 
Adams App. No. 13CA960 2

conviction. Because there are no aggravating elements necessary to enhance the 

penalty, R.C. 2945.74(A)(2) does not apply and the jury’s verdict form was sufficient to 

convict Jones of a third-degree felony. 

I. FACTS 

{¶3} Jones was charged with one count of illegal conveyance of weapons or 

other prohibited items onto the grounds of a detention facility or institution, in violation of 

R.C. 2921.36(A)(2), a third-degree felony. The state alleged that Jones placed six 

Suboxone tablets into the waistband of men’s underwear, and tried to have the 

underwear delivered to her son in the Adams County Jail. 

{¶4} Jones pleaded not guilty and the matter proceeded to trial. The jury 

returned a guilty verdict and the trial court sentenced her to a two year prison term. 

This appeal followed. 

II. ASSIGNMENTS OF ERROR 

{¶5} Jones raises one assignment of error for our review: 

1. “THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT 

ENTERED A JUDGMENT OF CONVICTION AGAINST MS. JONES FOR 

THIRD-DEGREE FELONY ILLEGAL CONVEYANCE OF WEAPONS, 

DRUGS OR OTHER PROHIBITED ITEMS ONTO THE GROUNDS OF A 

DETENTION FACILITY OR INSTITUTION, IN VIOLATION OF R.C. 

2945.75(A)(2), AND IN VIOLATION OF MS. JONES’ RIGHTS TO DUE 

PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED 

STATES CONSTITUTION, AND ARTICLE I, SECTION 16, OF THE OHIO 

CONSTITUTION.” 

III. LAW AND ANALYSIS 

{¶6} Initially, Jones indicates that she did not object to the verdict forms at trial 

and our review confirms that fact. Nevertheless, “the Supreme Court of Ohio has 

recognized error, even in the absence of an objection at trial, when a verdict form fails 
Adams App. No. 13CA960 3

to comply with R.C. 2945.75(A)(2).” Portsmouth v. Wrage, 4th Dist. Scioto No. 

08CA3237, 2009-Ohio-3390, ¶ 42, citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-

Ohio-256, 860 N.E.2d 735. 

{¶7} R.C. 2945.75(A)(2) provides: “When the presence of one or more 

additional elements makes an offense one of more serious degree: * * * 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.” And “[p]ursuant to the 

clear language of R.C. 2945.75, a verdict form signed by a jury must include either the 

degree of the offense of which the defendant is convicted or a statement that an 

aggravating element has been found to justify convicting a defendant of a greater 

degree of a criminal offense.” Pelfrey at syllabus. 

{¶8} “However, R.C. 2945.75(A)(2) and Pelfrey apply only to criminal offenses 

with multiple degrees of seriousness. For example, in Pelfrey, the defendant was found 

guilty of tampering with records in violation of R.C. 2913.42. Depending on the 

seriousness of the conduct, tampering with records under R.C. 2913.42 may be a 

misdemeanor of the first degree, a felony of the fifth degree, a felony of the fourth 

degree, or a felony of the third degree. * * * The verdict form in Pelfrey did not list the 

aggravating element (tampering with government records) or the degree of the offense 

(a third degree felony pursuant to R.C. 2913.42(B)(4)). * * * As a result, the defendant 

could ‘be convicted only of a misdemeanor offense, which is the least degree under 

R.C. 2913.42(B) of the offense of tampering with records.’” State v. Norman, 4th Dist. 

Ross Nos. 08CA3059, 08CA3066, 2009-Ohio-5458, ¶ 61, quoting Pelfrey at ¶ 13. 
Adams App. No. 13CA960 4

{¶9} Here, Jones was convicted of illegal conveyance of weapons or prohibited 

items onto the grounds of a detention facility or institution, in violation of R.C. 

2921.36(A)(2). Jones argues that because R.C. 2921.36 “includes aggravating 

elements that must be found before penalty enhancement” and “contains separate subparts with distinct offense levels,” the statute is subject to the R.C. 2945.75(A)(2) and 

Pelfrey. We agree the statute contains several distinct levels of offenses but we do not 

agree Pelfrey requires the verdict form to identify an enhancing element or the degree 

of defense. 

{¶10} R.C. 2921.36 states: 

(A) No person shall knowingly convey, or attempt to convey, onto the 

grounds of a detention facility or of an institution, office building, or other 

place that is under the control of the department of mental health and 

addiction services, the department of developmental disabilities, the 

department of youth services, or the department of rehabilitation and 

correction any of the following items: 

(1) Any deadly weapon or dangerous ordnance, as defined in section 

2923.11 of the Revised Code, or any part of or ammunition for use in such 

a deadly weapon or dangerous ordnance; 

(2) Any drug of abuse, as defined in section 3719.011 of the Revised 

Code; 

(3) Any intoxicating liquor, as defined in section 4301.01 of the Revised 

Code. 

* * * 

(C) No person shall knowingly deliver, or attempt to deliver, to any person 

who is confined in a detention facility, to a child confined in a youth 

services facility, to a prisoner who is temporarily released from 

confinement for a work assignment, or to any patient in an institution 

under the control of the department of mental health and addiction 

services or the department of developmental disabilities any item listed in 

division (A)(1), (2), or (3) of this section. 
Adams App. No. 13CA960 5

(D) No person shall knowingly deliver, or attempt to deliver, cash to any 

person who is confined in a detention facility, to a child confined in a youth 

services facility, or to a prisoner who is temporarily released from 

confinement for a work assignment. 

(E) No person shall knowingly deliver, or attempt to deliver, to any person 

who is confined in a detention facility, to a child confined in a youth 

services facility, or to a prisoner who is temporarily released from 

confinement for a work assignment a cellular telephone, two-way radio, or 

other electronic communications device. 

* * * 

(G) 

(1) Whoever violates division (A)(1) of this section or commits a violation 

of division (C) of this section involving an item listed in division (A)(1) of 

this section is guilty of illegal conveyance of weapons onto the grounds of 

a specified governmental facility, a felony of the third degree. If the 

offender is an officer or employee of the department of rehabilitation and 

correction, the court shall impose a mandatory prison term. 

(2) Whoever violates division (A)(2) of this section or commits a violation 

of division (C) of this section involving any drug of abuse is guilty of illegal 

conveyance of drugs of abuse onto the grounds of a specified 

governmental facility, a felony of the third degree. If the offender is an 

officer or employee of the department of rehabilitation and correction or of 

the department of youth services, the court shall impose a mandatory 

prison term. 

(3) Whoever violates division (A)(3) of this section or commits a violation 

of division (C) of this section involving any intoxicating liquor is guilty of 

illegal conveyance of intoxicating liquor onto the grounds of a specified 

governmental facility, a misdemeanor of the second degree. 

(4) Whoever violates division (D) of this section is guilty of illegal 

conveyance of cash onto the grounds of a detention facility, a 

misdemeanor of the first degree. If the offender previously has been 

convicted of or pleaded guilty to a violation of division (D) of this section, 

illegal conveyance of cash onto the grounds of a detention facility is a 

felony of the fifth degree. 

(5) Whoever violates division (E) of this section is guilty of illegal 

conveyance of a communications device onto the grounds of a specified 

governmental facility, a misdemeanor of the first degree, or if the offender 
Adams App. No. 13CA960 6

previously has been convicted of or pleaded guilty to a violation of division 

(E) of this section, a felony of the fifth degree. 

{¶11} “The illegal conveyance statute found in R.C. 2921.36 is a statute in 

which each division stands alone.” State v. Reynolds, 5th Dist. Richland No. 09-CA-13, 

2009-Ohio-3998, ¶ 22. “Merely because there are different levels of offenses contained 

within one statute does not mean that the statute is subject to the language of R.C. 

2945.75.” Id. at ¶ 40, citing State v. Pelfrey, 112 Ohio St.3d 422, 2007-Ohio-256, 860 

N.E.2d 735. The offense and penalty in our situation is controlled solely by R.C. 

2921.36(A)(2) & (G)(2) respectively. 

{¶12} Here, the jury’s verdict form stated: 

WE THE JURY, FIND THE DEFENDANT: KATHY JONES Guilty OF: 

ILLEGAL CONVEYANCE OF WEAPONS OR PROHIBITED ITEMS 

ONTO THE GROUNDS OF A DETENTION FACILITY OR INSTITUTION 

IN VIOLATION OF R.C. SECTION 2921.36(A)(2). 

Under R.C. 2921.36(G)(2), illegally conveying a drug of abuse onto the grounds of a 

detention facility or institution in violation of R.C. 2921.36(A)(2), is a felony of the third 

degree. It is not necessary to find an additional element present to elevate the crime to 

a third-degree felony. Reynolds at ¶ 45. If the state had failed to prove any of the 

elements in R.C. 2921.36(A)(2), Jones would have been acquitted, not convicted of a 

lesser degree of illegal conveyance. See State v. Edwards, 9th Dist. Lorain No. 

12CA010274, 2013-Ohio-3068, ¶ 35. Accordingly, R.C. 2945.75(A)(2) and Pelfrey are 

inapplicable to the facts of this case, and the jury’s verdict form did not need to specify 

the degree of the offense or the aggravating elements. See Reynolds at ¶ 21. 

{¶13} Jones further contends that the Supreme Court of Ohio’s decision in State 

v. Sessler, 119 Ohio St.3d 9, 2008-Ohio-3180, 891 N.E.2d 318 (Sessler III), requires 
Adams App. No. 13CA960 7

that we vacate her third-degree felony, and remand her case for resentencing for the 

least serious degree of illegal conveyance under 2921.36, a second-degree 

misdemeanor. 

{¶14} Following Pelfrey, the Supreme Court certified a conflict between State v. 

Kepiro, 10th Dist. No. 06AP-1302, 2007-Ohio-4593 (Kepiro I) (Pelfry applies to the GSI 

statute) and State v. Sessler, 3rd Dist. Crawford No. 3-06-23, 2007-Ohio-4931 (Sessler 

I) (Pelfrey applies to the intimidation statute) to address whether “the holding in State v. 

Pelfrey, 112 Ohio St.3d 422, 860 N.E.2d 735, [is] applicable to charging statutes that 

contain separate sub-parts with distinct offense levels[.]” State v. Sessler, 116 Ohio 

St.3d 1505, 2008-Ohio-381 (Sessler II). The Court answered the question affirmatively 

and simply affirmed the court’s decision in Sessler I “on the authority of State v. Pelfrey

(citation omitted).” Sessler III at ¶ 1. However, the Court later declined to accept 

Kepiro’s appeal for review. State v. Kepiro, 119 Ohio St.3d 1408, 2008-Ohio-3880, 891 

N.E.2d 769 (Kepiro II). 

{¶15} However, Sessler I is distinguishable from the facts of this case. The 

statute at issue in Sessler I “increased the punishment when the basic offense crime 

was committed in a more serious manner through the presence of additional elements 

or aggravating factors.” State v. Kepiro, 10th Dist. No. 09AP-19, 2009-Ohio-4654, ¶ 18 

(Kepiro III). The defendant in Sessler was convicted of intimidation in violation of R.C. 

2921.04(B). Sessler I at ¶ 4. The intimidation statute states: 

A) No person shall knowingly attempt to intimidate or hinder the victim of a 

crime or delinquent act in the filing or prosecution of criminal charges or a 

delinquent child action or proceeding, and no person shall knowingly 

attempt to intimidate a witness to a criminal or delinquent act by reason of 

the person being a witness to that act. 
Adams App. No. 13CA960 8

(B) No person, knowingly and by force or by unlawful threat of harm to any 

person or property or by unlawful threat to commit any offense or calumny 

against any person, shall attempt to influence, intimidate, or hinder any of 

the following persons: 

(1) The victim of a crime or delinquent act in the filing or prosecution of 

criminal charges or a delinquent child action or proceeding; 

(2) A witness to a criminal or delinquent act by reason of the person being 

a witness to that act; 

(3) An attorney by reason of the attorney's involvement in any criminal or 

delinquent child action or proceeding. 

* * * 

(D) Whoever violates this section is guilty of intimidation of an attorney, 

victim, or witness in a criminal case. A violation of division (A) of this 

section is a misdemeanor of the first degree. A violation of division (B) of 

this section is a felony of the third degree. 

{¶16} The court found Sessler guilty of the felony offense, even though the 

verdict form did not state the degree of the offense, the statutory section upon which the 

jury found him guilty, or refer to the use of force or threat of harm. Sessler I at ¶ 13. 

Under Pelfrey, the court found that Sessler could only be found guilty of the least 

offense, a first-degree misdemeanor under R.C. 2921.04(A), because the form did “not 

permit a determination as to which degree of offense Sessler [was] guilty of committing.” 

Id. See also, State v. Gregory, 3rd Dist. Hardin No. 6-12-02, 2013-Ohio-853, ¶ 24 

(finding that a verdict form’s reference in the caption to the statutory section of the 

charged offense does not satisfy R.C. 29445.75(A)(2)). 

{¶17} Here, the jury found Jones guilty of illegal conveyance in violation of R.C. 

2921.36(A)(2). Under R.C. 2921.36(G)(2), a violation of subsection (A)(2) can only 

result in a third-degree felony conviction. There are no aggravating elements necessary 

to enhance the penalty. As the court in Kepiro I and III indicated, the statutes in 
Adams App. No. 13CA960 9

Sessler are distinctly different than the statutes at issue in Kepiro and here. The illegal 

conveyance statute creates several separate types of prohibited conduct with each type 

constituting a separate offense bearing a separate penalty. There are no additional 

elements or attendant circumstances that change or enhance the penalties for each 

individual offense. See Kepiro III at ¶s 15-17. The statute in Sessler contains an 

additional document that alters the penalty of the basis offense. Id at ¶ 19. That is not 

the case here. 

{¶18} Nor are we confronted with a situation and statute like those in State v. 

McDonald, ---- Ohio St.3d ----, 2013-Ohio-5042. The statute prohibiting the failure to 

comply with an order or signal of a police officer, R.C. 2921.331, contains two separate 

violations in separate subsections of the statute, one a misdemeanor and one a felony. 

The jury’s verdict form was sufficient only to charge the misdemeanor version even 

though it contained some enhancing language from the felony version. Because the 

verdict form did not contain all the elements necessary for the felony version, R.C. 

2945.75(A)(2) required a conviction for the least degree of the offense, i.e. a 

misdemeanor. No similar problem exists here.

IV. CONCLUSION 

{¶19} Therefore, Sessler and Pelfrey are inapplicable and the jury’s verdict form 

was sufficient to convict Jones of a third-degree felony. Accordingly, we overrule her 

sole assignment of error and affirm her conviction. 

JUDGMENT AFFIRMED. 
Adams App. No. 13CA960 10

JUDGMENT ENTRY

 It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the 

costs. 

 The Court finds there were reasonable grounds for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Adams 

County Court of Common Pleas to carry this judgment into execution. 

 IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS 

BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is 

temporarily continued for a period not to exceed sixty days upon the bail previously 

posted. The purpose of a continued stay is to allow Appellant to file with the Supreme 

Court of Ohio an application for a stay during the pendency of proceedings in that court. 

If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 

sixty day period, or the failure of the Appellant to file a notice of appeal with the 

Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of 

the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court 

of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as 

of the date of such dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

Abele, J. & Hoover, J.: Concur in Judgment and Opinion. 

 For the Court 

 BY: ________________________ 

 William H. Harsha, Judge 

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final judgment 

entry and the time period for further appeal commences from the date of filing 

with the clerk.