[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State

v. Mays, Slip Opinion No. 2024-Ohio-4616.]

NOTICE

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published.

SLIP OPINION NO. 2024-OHIO-4616

THE STATE OF OHIO, APPELLEE, v. MAYS, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. Mays, Slip Opinion No. 2024-Ohio-4616.]

Criminal law—R.C. 2945.75—The requirement in R.C. 2945.75(A)(2) that a guilty 

verdict state either the degree of the offense of which the offender is found 

guilty or additional element or elements is satisfied by a verdict form that 

cites the statutory section or sections mandating that the defendant be 

convicted of a higher-level offense—Plain-error review applies when a 

defendant fails to raise an objection to a verdict form’s alleged 

noncompliance with R.C. 2945.75(A)(2)—Judgment affirmed.

(No. 2023-0839—Submitted March 12, 2024—Decided September 25, 2024.)

CERTIFIED by the Court of Appeals for Lucas County,

No. L-21-1228, 2023-Ohio-1908.

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2

FISCHER, J., authored the opinion of the court, which KENNEDY, C.J., and 

DEWINE and DETERS, JJ., joined. BRUNNER, J., dissented, with an opinion joined 

by DONNELLY and STEWART, JJ.

FISCHER, J.

{¶ 1} In this case, we are asked to determine whether a verdict form’s 

reference to the statutory section or sections mandating that a defendant be 

convicted of a higher-level offense constitutes compliance with R.C. 

2945.75(A)(2)’s requirement that the verdict state the degree of the offense of 

which the offender is found guilty. We conclude that a verdict form’s citation to 

the statutory section mandating the degree of the offense does comply with R.C. 

2945.75(A)(2).

I. FACTUAL AND PROCEDURAL BACKGROUND

{¶ 2} Appellant, Mario D. Mays, was charged with multiple offenses, 

including violating a protection order under R.C. 2919.27(A) and (B), a fifth-degree 

felony. Uncontested trial evidence showed that Mays had previously been 

convicted of violating a protection order. The jury ultimately found Mays guilty of 

violating a protection order. The jury’s verdict form specified, “We the jury . . . for 

verdict find and say that we find the defendant, Mario D. Mays . . . guilty of Count 

1, Violating a Protection Order, in violation of R.C. 2919.27(A)(1) and (B)(3).” 

Mays did not object to the verdict form. Because of his prior conviction, Mays’s 

offense in this case constituted a fifth-degree felony under R.C. 2919.27(B)(3).

{¶ 3} The Sixth District Court of Appeals affirmed Mays’s conviction and 

sentence in a two-to-one decision. 2023-Ohio-1908, ¶ 73 (6th Dist.). In one of his 

assignments of error on appeal, Mays argued that the verdict form was insufficient 

to convict him of a fifth-degree felony because it contained no reference to the level 

of the offense or any aggravating factors that raise the level of the offense, contrary 

to the requirement of R.C. 2945.75(A)(2). Id. at ¶ 48.
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3

{¶ 4} Relying on our decision in State v. Pelfrey, 2007-Ohio-256, the Sixth 

District concluded that in determining whether a verdict form complies with R.C. 

2945.75(A)(2), courts may look to what is contained within that verdict form. 

2023-Ohio-1908 at ¶ 62 (6th Dist.). The court of appeals reasoned that if a statutory 

reference contained within the verdict form is sufficient to give notice of the degree 

of the offense without additional information, then the verdict form is sufficient 

under R.C. 2945.75(A)(2). Id. In its analysis, the court of appeals noted that in

Pelfrey, this court never stated that a reference to a statutory section within the 

verdict form is insufficient to state the degree of the offense. 2023-Ohio-1908 at 

¶ 57 (6th Dist.). The court of appeals further noted that a concurring opinion in a 

subsequent Ohio Supreme Court case indicated that a reference to a statutory 

section in a verdict form would be sufficient to state the degree of the offense in 

compliance with R.C. 2945.75(A)(2). Id. at ¶ 60, citing State v. McDonald, 2013-

Ohio-5042, ¶ 29 (Lanzinger, J., concurring).

{¶ 5} The dissenting opinion in the court of appeals emphasized that the 

verdict form in Mays’s case contains no statement of the degree of the felony and 

does not state the additional element or elements present to increase the degree of 

the offense. Id. at ¶ 87 (Zmuda, J., dissenting). It noted that R.C. 2919.27(B)(3) 

provides that the offense of violating a protection order will merit a higher offense 

level if one of three alternative requirements is met and that Mays’s verdict form 

did not specify which of the three alternatives applied to Mays. Id. (Zmuda, J., 

dissenting).

{¶ 6} The Sixth District noted that its decision conflicted with State v. 

Gregory, 2013-Ohio-853 (3d Dist.), in which the Third District Court of Appeals 

held that a reference to the statutory section will not satisfy R.C. 2945.75(A)(2). 

2023-Ohio-1908, at ¶ 68, 70 (6th Dist.). This court determined that a conflict exists 

and ordered briefing on the conflict question certified by the Sixth District:
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Can the requirement in R.C. 2945.75(A)(2) that a “guilty verdict 

shall state either the degree of the offense of which the offender is 

found guilty, or that such additional [aggravating] element or 

elements are present” be satisfied by a verdict form that cites the 

statutory sections, permitting the defendant to be convicted of the 

higher-level offense?

(Bracketed text in original.) 2023-Ohio-3100.

II. ANALYSIS

{¶ 7} The legal issue before us in this case is straightforward: When a 

verdict form contains no reference to the degree of the offense and does not list the 

additional elements present that require the offense level to be raised but instead 

cites the statutory section that requires the degree of the offense to be raised in 

certain circumstances, may the level of the offense be properly elevated in 

compliance with R.C. 2945.75(A)(2)? We conclude that a citation to the statutory 

section will suffice to satisfy R.C. 2945.75(A)(2).

A. The verdict form satisfied R.C. 2945.75(A)(2) in this case

{¶ 8} R.C. 2945.75(A) provides the following:

When the presence of one or more additional elements 

makes an offense one of more serious degree:

. . .

(2) 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.
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This court has examined R.C. 2945.75(A)(2)’s requirements on multiple occasions. 

For example, Pelfrey, 2007-Ohio-256, involved a verdict form that did not contain 

the degree of the offense and did not list the element necessary to elevate the offense 

level. Id. at ¶ 13. This court determined that a verdict form’s incorporation of the 

language of the indictment and the demonstration of trial evidence proving the 

existence of the additional element necessary to raise the level of the offense were 

not enough for the verdict form to comply with R.C. 2945.75(A)(2). Id. at ¶ 14. 

This court further stated that Pelfrey’s failure to challenge the adequacy of the 

verdict form at the trial-court level did not prevent him from prevailing on the issue 

on appeal. Id. This court accordingly affirmed the court of appeals’ decision 

reversing the conviction and ordering the trial court to enter a judgment convicting 

Pelfrey of the lowest degree of the offense charged. Id. at ¶ 15.

{¶ 9} We revisited the requirements of R.C. 2945.75(A)(2) in State v. 

Eafford, 2012-Ohio-2224. In Eafford, the verdict form did not list the level of the 

offense or contain any additional elements requiring the level of the offense to be 

elevated. Id. at ¶ 7. A majority of this court concluded that a reference to the 

indictment contained in the verdict form compelled a conclusion that the jury 

necessarily found that the additional element was present. Id. at ¶ 17. In our

analysis, we also noted that the indictment referenced the additional element and 

that the State set forth evidence at trial supporting that additional element. Id. at 

¶ 18. Notably, we specified that a plain-error analysis must be conducted because 

Eafford failed to object to the verdict form at trial. Id. at ¶ 11-12. This court

concluded that “Eafford has not shown that but for the use of this verdict form, the 

outcome of the trial would have been different.” Id. at ¶ 19. Finding neither error 

nor plain error, we reversed the court of appeals’ judgment and reinstated the trial 

court’s sentence. Id.

{¶ 10} This court again considered R.C. 2945.75(A)(2) in State v. 

McDonald, 2013-Ohio-5042. Relying on Pelfrey, the majority in McDonald 
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concluded that because the verdict form did not list the degree of the offense or 

indicate any additional elements that would require the offense level to be raised, 

the verdict form did not satisfy the requirements of R.C. 2945.75(A)(2). McDonald

at ¶ 17-19, 23. Notably, our decision in McDonald contained no references to our 

decision in Eafford. Further, a concurring opinion in McDonald contained a 

statement that the verdict form would have complied with R.C. 2945.75(A)(2) if it 

had simply referenced the relevant statutory provisions providing the degree of the 

offense. Id. at ¶ 29 (Lanzinger, J., concurring).

{¶ 11} The certified conflict in this case indicates that some confusion 

exists about the application of this court’s decisions concerning R.C. 

2945.75(A)(2). The Third District concluded that the inclusion of the statutory 

section in the verdict form does not satisfy R.C. 2945.75(A)(2). Gregory, 2013-

Ohio-853, at ¶ 24 (3d Dist.). In reaching this conclusion, the Third District stated 

that “Pelfrey and Eafford apparently contradict each other,” and it ultimately chose

to follow its interpretation of Pelfrey. Gregory at ¶ 18. Furthermore, the Third 

District concluded that the failure in Gregory to comply with R.C. 2945.75(A)(2) 

constituted plain error. Id. at ¶ 21.

{¶ 12} The Sixth District below concluded that the Third District’s analysis 

in Gregory was “questionable.” 2023-Ohio-1908 at ¶ 57 (6th Dist.). In so 

concluding, the Sixth District reasoned that our holding in Pelfrey forbids looking 

outside the verdict form to determine whether R.C. 2945.75(A)(2) has been 

complied with, but that it is permissible to make inferences based on what is 

contained within the verdict form itself (e.g., statutory citations). Id. Notably, both 

the majority and dissenting opinions below concluded that plain-error review is 

inappropriate in these types of cases, rejecting without explanation the approach set 

forth by this court in Eafford, and instead reviewed de novo. See 2023-Ohio-1908

at ¶ 53 (6th Dist.); id. at ¶ 76 (Zmuda, J., dissenting).
January Term, 2024

7

{¶ 13} We conclude that the Sixth District reached the correct conclusion in 

this case. The verdict form specifies that Mays was found guilty of “Violating a 

Protection Order, in violation of R.C. 2919.27(A)(1) and (B)(3).” Under R.C. 

2919.27:

(A) No person shall recklessly violate the terms of any of the 

following:

(1) A protection order issued or consent agreement approved 

pursuant to section 2919.26 or 3113.31 of the Revised Code;

...

(B)(1) Whoever violates this section is guilty of violating a 

protection order.

...

(3) Violating a protection order is a felony of the fifth degree 

if the offender previously has been convicted of, pleaded guilty to, 

or been adjudicated a delinquent child for any of the following:

(a) A violation of a protection order issued or consent 

agreement approved pursuant to section 2151.34, 2903.213, 

2903.214, 2919.26, or 3113.31 of the Revised Code;

(b) Two or more violations of section 2903.21, 2903.211, 

2903.22, or 2911.211 of the Revised Code, or any combination of 

those offenses, that involved the same person who is the subject of 

the protection order or consent agreement;

(c) One or more violations of this section.

{¶ 14} Although the verdict form does not contain the magic words “the 

offense is a felony of the fifth degree,” we conclude that the verdict form in this 

case complies with R.C. 2945.75. The verdict form explicitly states that Mays was
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found guilty in violation of R.C. 2919.27(B)(3). Because an offender found to be 

in violation of R.C. 2919.27(B)(3) has, under that division’s clear language,

committed a felony of the fifth degree, the jury’s statement in its verdict form that 

Mays violated R.C. 2919.27(B)(3) is a statement that Mays committed a felony of 

the fifth degree. Thus, the verdict form’s citation to R.C.2919.27(B)(3) constituted 

a statement of the degree of the offense to which Mays was found guilty, and the 

verdict form complied with R.C. 2945.75(A)(2).

{¶ 15} This conclusion is consistent with our holding in Pelfrey. In Pelfrey, 

this court emphasized that R.C. 2945.75(A)(2) requires that a jury’s verdict form 

“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.” 2007-Ohio-256, at ¶ 14. We

further stated in Pelfrey:

[T]his court will not excuse the failure to comply with the statute or 

uphold Pelfrey’s conviction based on additional circumstances such 

as those present in this case. The express requirement of the statute 

cannot be fulfilled by demonstrating additional circumstances, such 

as that the verdict incorporates the language of the indictment, or by

presenting evidence to show the presence of the aggravated element 

at trial or the incorporation of the indictment into the verdict form, 

or by showing that the defendant failed to raise the issue of the 

inadequacy of the verdict form.

Id. In this case, while we conclude that the verdict form complies with R.C. 

2945.75(A)(2), we do not base that conclusion on additional circumstances found 

outside the verdict form, such as incorporation of the indictment or review of the 

trial court’s record. Instead, we conclude that the verdict form complies with R.C. 
January Term, 2024

9

2945.75(A)(2) based on the statements made within that verdict form. This 

conclusion is consistent with this court’s previous decisions. See McDonald, 2013-

Ohio-5042, at ¶ 29 (Lanzinger, J., concurring) (explaining that a “simple 

application of State v. Pelfrey” provides that a citation to the relevant statutory 

section in the verdict form is sufficient to satisfy R.C. 2945.75(A)(2)).

{¶ 16} Mays argues that the citation to R.C 2919.27(B)(3) in the verdict 

form does not satisfy R.C. 2945.75(A)(2), because R.C. 2919.27(B)(3) lists three 

ways in which the offense of violating a protection order may be elevated to a 

felony of the fifth degree, and the verdict form in this case does not specify which 

of those three subsections provide the basis for elevating Mays’s offense. This 

argument would be more compelling if R.C. 2945.75(A)(2) required the verdict 

form to state the additional element or elements present that support elevating the 

level of the offense. R.C. 2945.75(A)(2), however, specifies that an offense may 

be elevated if the verdict form states the degree of the offense. Because we 

conclude that the verdict form states the degree of the offense, Mays’s argument 

that the verdict form does not specify which subsection of R.C. 2919.27(B)(3) 

applies to him is unavailing.

{¶ 17} For these reasons, we answer the certified conflict question in the 

affirmative and hold that the requirement in R.C. 2945.75(A)(2) that a guilty verdict 

state either the degree of the offense of which the offender is found guilty or 

additional element or elements is satisfied by a verdict form that cites the statutory 

section or sections mandating that the defendant be convicted of a higher-level 

offense. Because the verdict form in this case cited R.C. 2919.27(B)(3), which 

specifies that Mays’s offense was a felony of the fifth degree, we conclude that the 

verdict form complied with R.C. 2945.75(A)(2).
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B. Even if error existed in this case, Mays failed to meet his burden of 

showing plain error

{¶ 18} We further conclude that, even if the jury’s verdict form contained 

an error, Mays’s conviction must be affirmed because he failed to show plain error.

{¶ 19} As noted above, both the majority and dissenting opinions in the 

court of appeals concluded that plain-error review is inappropriate in these types of 

cases, rejecting without explanation the approach set forth by this court in Eafford

and instead reviewing de novo. See 2023-Ohio-1908, at ¶ 53 (6th Dist.); id. at ¶ 76

(Zmuda, J., dissenting). This approach could be viewed as following Pelfrey, in 

which this court stated that “[t]he express requirement of [R.C. 2945.75(A)(2)] 

cannot be fulfilled by demonstrating additional circumstances, such as . . . by

showing that the defendant failed to raise the issue of the inadequacy of the verdict 

form.” Pelfrey, 2007-Ohio-256, at ¶ 14. Indeed, the court of appeals below relied

on Pelfrey in rejecting the application of a plain-error analysis. 2023-Ohio-1908 at 

¶ 53 (6th Dist.).

{¶ 20} But we did not expressly disclaim application of plain-error analysis

in Pelfrey. Instead, we merely explained that a defendant’s failure to object to the 

verdict form does not automatically cure any noncompliance with R.C. 

2945.72(A)(2). See Pelfrey at ¶ 5.

{¶ 21} Five years after Pelfrey was decided, this court explicitly stated that

a plain-error analysis applies to this exact situation. See Eafford, 2012-Ohio-2224, 

at ¶ 11. In Eafford, the language in a verdict form found the defendant guilty of an 

offense as charged in the indictment but did not state the degree of the offense or 

the additional element or elements present. Id. at ¶ 18. Following our reasoning in 

Pelfrey, the appellate court in Eafford had determined that incorporating the 

indictment into the language of the verdict form was insufficient on its own to 

comply with R.C. 2945.72(A)(2). Id. at ¶ 7-8; see Pelfrey at ¶ 14. This court, 

however, concluded that “[t]he finding in the verdict cannot be described as error, 
January Term, 2024

11

let alone an obvious defect in the trial proceedings, and it did not affect Eafford’s 

substantial rights.” Eafford at ¶ 18. Because Eafford had not shown that but for 

the use of the verdict form, the outcome of the trial would have been different, the 

court concluded that Eafford had failed to show plain error. Id. at ¶ 18-19.

{¶ 22} We note that in McDonald this court, without conducting a plainerror analysis, reversed a conviction for failure to comply with R.C. 2945.75(A)(2). 

Notably, our opinion in McDonald does not cite Eafford and is silent regarding 

whether McDonald had failed to object to the verdict form (thus forfeiting all but 

plain error). We further note that, while the court of appeals’ decision in McDonald

found that McDonald had failed to object to certain alleged errors and was thus

required to show plain error regarding those alleged errors, 2012-Ohio-1528, ¶ 11, 

23 (4th Dist.), it did not find any failure to object in regard to the verdict form and 

ultimately found that the verdict form complied with R.C. 2945.752(A)(2), id. at

¶ 7-10.

{¶ 23} Lower courts have indicated that our decisions in Pelfrey, Eafford, 

and McDonald have generated some confusion regarding whether plain-error 

analysis applies when a defendant fails to object to a verdict form’s noncompliance 

with R.C. 2945.75(A)(2). See, e.g., State v. Shockey, 2024-Ohio-296, ¶ 34 (3d 

Dist.). We accordingly take this opportunity to reaffirm our holding in Eafford that 

plain-error analysis does apply when a defendant fails to raise an objection to a 

verdict form’s alleged noncompliance with R.C. 2945.75(A)(2). Eafford contains 

a full analysis of this question. See Eafford at ¶ 11-12. Moreover, neither Pelfrey 

nor McDonald contains any statement that plain-error analysis is inappropriate in 

these situations.

{¶ 24} In affirming our holding in Eafford, we note that other state supreme 

courts also apply plain-error analysis when reviewing alleged deficiencies in 

verdict forms. See People v. Caffey, 205 Ill.2d 52, 120 (2001) (applying plain-error 

analysis when a verdict form omitted some elements of the crime); Stewart v. State, 
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311 Ga. 471, 475 (2021) (examining a verdict form that deviated from the required 

pattern instruction under plain-error analysis); Lehnert v. People, 244 P.3d 1180, 

1181-1182 (Colo. 2010) (holding that a verdict form’s failure to include a required 

finding of fact constituted plain error); Alaska Fur Gallery, Inc. v. First Natl. Bank 

Alaska, 345 P.3d 76, 93-94 (Alaska 2015) (analyzing claims that the questions on a 

special verdict form resulted in a double reduction of a damages award under plainerror analysis); Oglesby v. State, 513 N.E.2d 638, 641 (Ind. 1987) (holding that the 

trial court plainly erred when the verdict form stated that the defendant was guilty 

of a class-B felony after he had been charged and convicted of a class-C felony).

{¶ 25} We further note that Mays had the burden of objecting to the verdict 

form in this case. When a trial court’s error results in a lesser punishment for the 

defendant and accordingly prejudices the State, the State bears the burden of 

objecting and calling the trial court’s attention to the error. See State v. Breaston, 

83 Ohio App.3d 410, 413 (10th Dist. 1993); State v. Lacey, 2006-Ohio-4290, 

¶ 33-34 (5th Dist.); State v. Goodwin, 2008-Ohio-378, ¶ 21 (9th Dist.). On the other 

hand, when a trial court’s error results in a greater punishment for the defendant 

and accordingly prejudices the defendant, the defendant bears the burden of 

objecting and calling the trial court’s attention to the error. See Eafford, 2012-Ohio2224, at ¶ 11-12; State v. Gleason, 110 Ohio App.3d 240, 248 (9th Dist. 1996) (“the 

errors that a defendant is required to object to in the trial court are those that 

prejudice him” [emphasis in original]).

{¶ 26} In this case, the verdict form’s alleged failure to comply with R.C. 

2945.75(A)(2) prejudiced Mays, as the verdict form elevated his offense from a 

first-degree misdemeanor to a fifth-degree felony under R.C. 2919.27(B). Thus, 

Mays bore the responsibility of objecting. Because he failed to raise an objection 

at the trial-court level, he forfeited all but plain error on appeal.

{¶ 27} Under plain-error review, three elements must be met in order to find

reversible error. There must first be a deviation from a legal rule, that deviation 
January Term, 2024

13

must be an obvious defect in trial proceedings, and the deviation must have affected 

substantial rights. Eafford at ¶ 11, citing State v. Payne, 2007-Ohio-4642, ¶ 16. 

Even if we were to conclude that the verdict form failed to comply with R.C. 

2945.75(A)(2), Mays fails to show plain error because the verdict form’s deviation

from R.C. 2945.75(A)(2) did not affect his substantial rights. It was uncontested 

below that Mays had previously been convicted of violating a protection order, and 

the jury in this case found Mays guilty of violating a protection order. Under R.C. 

2919.27(B)(3)(c), violating a protection order is a felony of the fifth degree when 

the offender previously has been convicted of violating a protection order. Because 

it is uncontested that Mays’s offense constituted a felony of the fifth degree, any 

deficiencies in the verdict form under R.C. 2945.75(A)(2) would not affect his 

substantial rights. We accordingly conclude that even if we were to find error under 

R.C. 2945.75(A)(2), we would be compelled to affirm the judgment of the Sixth 

District.

III. CONCLUSION

{¶ 28} We answer the certified-conflict question in the affirmative and hold 

that the requirement in R.C. 2945.75(A)(2) that a guilty verdict state either the 

degree of the offense of which the offender is found guilty or additional element or 

elements is satisfied by a verdict form that cites the statutory section or sections 

mandating that the defendant be convicted of a higher-level offense. Because the 

verdict form in this case cited R.C. 2919.27(B)(3), which specifies that Mays’s 

offense was a felony of the fifth degree, we conclude that the verdict form complied 

with R.C. 2945.75(A)(2). We further conclude that even if the verdict form 

contained an error, Mays failed to meet his burden of showing plain error. For these 

reasons, we affirm the judgment of the Sixth District Court of Appeals.

Judgment affirmed.

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BRUNNER, J., joined by DONNELLY and STEWART, JJ., dissenting.

I. INTRODUCTION

{¶ 29} After a jury trial, the jury rendered a verdict finding appellant, Mario 

D. Mays, guilty of “Violating a Protection Order, in violation of R.C. 

2919.27(A)(1) and (B)(3).” Under R.C. 2945.75(A)(2), the offense he was 

convicted of was one in which “one or more additional elements mak[e] [the] 

offense one of more serious degree,” and consequently the guilty verdict was 

required to “state either the degree of the offense of which the offender is found 

guilty, or that such additional element or elements are present.” Because the verdict 

form did not state that Mays was convicted of a fifth-degree felony or set forth any 

aggravating elements, the “verdict constitute[d] a finding of guilty of the least 

degree of the offense charged,” id., which, in this case, was a first-degree 

misdemeanor, see R.C. 2919.27(B)(2) through (3).

{¶ 30} The majority’s decision now concludes that even though the verdict 

form did not explicitly comply with R.C. 2945.75(A)(2), its reference to division 

(B)(3) of R.C. 2919.27 was close enough to stating the degree of the offense for it 

to impose on Mays a felony of the fifth degree. The majority’s decision then 

engages in obiter dictum analysis positing that even if the verdict form was 

insufficient under R.C. 2945.75(A)(2), Mays should be subject to plain-error 

analysis because he failed to object to the verdict form at trial. However, if the 

legislature wanted a mere reference to a statutory division to be a substitute for 

stating “either the degree of the offense of which the offender is found guilty, or 

that such additional element or elements are present,” R.C. 2945.75(A)(2), to 

elevate the offense, it could and should have stated as much. We are not the 

legislature. To add language where none exists is to step out of our lane and place 

government out of balance, violating the separation-of-powers doctrine of our state 

Constitution. See, e.g., State ex rel. Bray v. Russell, 89 Ohio St.3d 132, 134 (2000).
January Term, 2024

15

{¶ 31} Further, a plain-error analysis does not apply against Mays in this 

situation, because under R.C. 2945.75(A)(2) the verdict-form error was not to 

Mays’s detriment. The omission of either the degree of the offense or its 

aggravating elements renders the verdict form capable of convicting Mays of only 

“the least degree of the offense charged,” R.C. 2945.75(A)(2), which, in this case, 

was a first-degree misdemeanor, see R.C. 2919.27(B)(2) through (3). Mays should 

not be obligated to object when doing so would ensure that the verdict form was 

written in a way that would convict him of a felony rather than a misdemeanor. 

Until convicted, he is considered innocent, and an innocent person does not have 

the obligation to point to higher level crimes involving more serious guilty conduct 

for the actions he is accused of having taken.

{¶ 32} The majority’s decision effectively adds language to the statute and 

places the burden on a defendant to act against his or her own interest by raising an 

objection that increases the defendant’s criminal exposure. I respectfully dissent.

II. FACTS AND PROCEDURAL HISTORY

{¶ 33} I adopt the statement of facts and procedural history as set forth in 

the majority opinion.

III. ANALYSIS

A. Compliance with R.C. 2945.75(A)(2)

{¶ 34} It is undisputed that Mays was found guilty of violating a protection 

order under R.C. 2919.27, which provides:

(A) No person shall recklessly violate the terms of any of the 

following:

(1) A protection order issued or consent agreement approved 

pursuant to section 2919.26 or 3113.31 of the Revised Code[.]

R.C. 2919.27(B) sets forth the offense levels:
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(1) Whoever violates this section is guilty of violating a 

protection order.

(2) Except as otherwise provided in division (B)(3) or (4) of 

this section, violating a protection order is a misdemeanor of the first 

degree.

(3) Violating a protection order is a felony of the fifth degree 

if the offender previously has been convicted of, pleaded guilty to, 

or been adjudicated a delinquent child for any of the following:

(a) A violation of a protection order issued or consent 

agreement approved pursuant to section 2151.34, 2903.213, 

2903.214, 2919.26, or 3113.31 of the Revised Code;

(b) Two or more violations of section 2903.21, 2903.211, 

2903.22, or 2911.211 of the Revised Code, or any combination of 

those offenses, that involved the same person who is the subject of 

the protection order or consent agreement;

(c) One or more violations of this section.

(4) If the offender violates a protection order or consent 

agreement while committing a felony offense, violating a protection 

order is a felony of the third degree.

A violation of this statute is a misdemeanor unless an additional element specified 

in (B)(3)(a), (B)(3)(b), (B)(3)(c), or (B)(4) is factually found.

{¶ 35} The legislature has enacted R.C. 2945.75 to mandate that a jury 

indicate on the verdict form the level of offense it has found an offender to have 

committed:

(A) When the presence of one or more additional elements 

makes an offense one of more serious degree:

. . .
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17

(2) 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.

{¶ 36} We have significantly addressed R.C. 2945.75(A)(2) on three prior 

occasions and made clear that when applicable, the statute is to be strictly applied 

according to its terms. In State v. Pelfrey, 2007-Ohio-256, we stated:

Pelfrey’s offense of tampering with records would have constituted 

a misdemeanor under R.C. 2913.42(B)(2)(a) but for the additional 

element that the records at issue were government records, a 

circumstance that elevates the crime to a third-degree felony under 

R.C. 2913.42(B)(4). However, neither the verdict form nor the trial 

court’s verdict entry mentions the degree of Pelfrey’s offense; nor 

do they mention that the records involved were government records. 

[R.C. 2945.75] provides explicitly what must be done by the courts 

in this situation: the “guilty verdict constitutes a finding of guilty of 

the least degree of the offense charged.” R.C. 2945.75(A)(2). In 

this case, therefore, Pelfrey can 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.

Because the language of R.C. 2945.75(A)(2) is clear, this 

court will not excuse the failure to comply with the statute or uphold 

Pelfrey’s conviction based on additional circumstances such as 

those present in this case. The express requirement of the statute 

cannot be fulfilled by demonstrating additional circumstances, such 

as that the verdict incorporates the language of the indictment, or by 
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presenting evidence to show the presence of the aggravated element 

at trial or the incorporation of the indictment into the verdict form, 

or by showing that the defendant failed to raise the issue of the 

inadequacy of the verdict form. We hold that pursuant 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.

Id. at ¶ 13-14.

{¶ 37} We next decided State v. Eafford, 2012-Ohio-2224, in which we 

considered whether a verdict form complied with R.C. 2945.75(A)(2). The verdict 

form in that case stated, “We, the Jury in this case being duly impaneled and sworn, 

do find the Defendant, Donald Eafford, guilty of Possession of Drugs in violation 

of [R.C. 2925.11(A)], as charged in Count Two of the indictment.” Id. at ¶ 6. In 

that case, the defendant argued that he could not be convicted of a felony for 

possessing cocaine, because the verdict form did not specify that the drug in 

question was cocaine, which, he claimed, would have elevated the offense under 

R.C. 2945.75. Id. at ¶ 9. We observed, however, that the indictment charged 

Eafford with possession of cocaine, and the least degree of that offense is a felony 

of the fifth degree. Id. at ¶ 2, 17-19. In short, the offense at issue in Eafford was 

not one for which “additional elements [made] [the] offense one of more serious 

degree” such that R.C. 2945.75(A)(2) would have applied. Further, the evidence 

presented at trial proved that Eafford had possessed cocaine, and the trial court 

instructed the jury that it could find Eafford guilty only if it found the drug involved 

to be cocaine. Id. at ¶ 2. The jury, which found Eafford guilty as charged in the 

indictment, thus found him guilty of possession of cocaine as a felony of the fifth 
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19

degree, and the trial court did not plainly err in imposing its sentence accordingly. 

Id.

{¶ 38} A year after this court decided Eafford, we reiterated our holding in 

Pelfrey in our decision of State v. McDonald, 2013-Ohio-5042:

In Pelfrey, this court addressed the specificity that R.C. 

2945.75 requires in verdict forms in cases in which the degree of an 

offense becomes more serious with the presence of additional 

elements. The court held:

“[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, 112 Ohio St.3d 422, 2007-Ohio-256, 860 N.E.2d 735, at 

¶ 14.

This court called R.C. 2945.75 “a clear and complete statute” 

that “certainly imposes no unreasonable burden on lawyers or trial 

judges.” Id. at ¶ 12. Its dictates are simple, and the resolution of 

cases that do not meet its requirements is also straightforward: “The 

statute provides explicitly what must be done by the courts [when 

R.C. 2945.75(A)(1) is not followed]: the ‘guilty verdict constitutes 

a finding of guilty of the least degree of the offense charged.’ R.C. 

2945.75(A)(2).” Id. at ¶ 13.

. . .

Pelfrey makes clear that in cases involving offenses for 

which the addition of an element or elements can elevate the offense 

to a more serious degree, the verdict form itself is the only relevant 
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thing to consider in determining whether the dictates of R.C. 

2945.75 have been followed.

McDonald at ¶ 13-14, 17. In McDonald, this Court found that when a verdict form 

failed to specify that the offense was a third-degree felony and also failed to indicate 

that the defendant had “operate[d] a motor vehicle so as willfully to elude or flee a 

police officer after receiving a visible or audible signal from a police officer to bring 

the person’s motor vehicle to a stop,” R.C. 2921.331(B), a defendant could be guilty 

only of a misdemeanor for “failure to comply with an order or signal of a police 

officer,” R.C. 2921.331(C)(1) and (3). McDonald at ¶ 22-23, 25. The verdict 

form’s indication that the offender had “Caused A Substantial Risk of Serious 

Physical Harm To Persons or Property,” id. at ¶ 20, was insufficient by itself to 

elevate a violation of R.C. 2921.331 to a felony, id. at ¶ 24-25. We concluded that 

“a felony verdict form—if it does not state the degree of the offense—must state 

the elements that distinguish it from a misdemeanor offense.” Id. at ¶ 24.

{¶ 39} There is no dispute in this case that the verdict form stated only that 

Mays was found guilty of “Violating a Protection Order, in violation of R.C. 

2919.27(A)(1) and (B)(3).” Applying R.C. 2945.75(A)(2) strictly according to its 

terms, there is no dispute that the verdict form did not explicitly “state . . . the degree 

of the offense” that Mays was being found guilty of—a fifth-degree felony. Nor 

did it state “one or more additional elements” to make the “offense one of more 

serious degree,” R.C. 2945.75(A)(2). The form did not provide the jury an 

opportunity to expressly find that Mays had been previously convicted of: (1) 

violating a protection order or consent agreement (R.C. 2919.27(B)(3)(a)), (2) two 

or more convictions of menacing, aggravated menacing, menacing by stalking, or 

aggravated trespass against the subject of the protection order (R.C. 

2919.27(B)(3)(b)), (3) one or more prior violations of R.C. 2919.27 (R.C. 

2919.27(B)(3)(c)), or (4) a violation of R.C. 2919.27 while committing a felony 
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21

offense (R.C. 2919.27(B)(4)). The verdict form, in short, did not directly comply 

with R.C. 2945.75(A)(2)—even though we have previously found that such 

compliance is required, see Pelfrey, 2007-Ohio-256, at ¶ 14.

{¶ 40} The State, the Attorney General as amicus curiae in this case, and 

now the majority, take the position that the jury’s reference to division (B)(3) in the 

verdict form finding Mays guilty sufficiently indicated the level of the offense to 

satisfy R.C. 2945.75(A)(2). This might be a reasonable position if R.C. 

2945.75(A)(2) were amended as follows: “A guilty verdict shall state either the 

degree of the offense of which the offender is found guilty, the statutory division 

of which the offender is found guilty, or that such additional element or elements 

are present.” But it hasn’t been. And to read it as if it has—as the majority’s 

decision now does—is to amend the statute ourselves. We are not the legislature. 

If that is a wise change, the legislature should make it. We are not empowered to 

stand in judgment of public policy, nor may we alter or amend it.

{¶ 41} Even if reference to the statutory division were sufficient, the jury’s 

finding does not create a clear path to that conclusion in this case. The jury found 

Mays guilty “of Count 1, Violating a Protection Order, in violation of R.C. 

2919.27(A)(1) and (B)(3).” The phrase “in violation of R.C. 2919.27(A)(1)” is a 

clear enough statement of the jury’s finding. One who violates R.C. 2919.27(A)(1) 

has “recklessly violate[d] the terms of . . . [a] protection order issued or consent 

agreement approved pursuant to section 2919.26 or 3113.31 of the Revised 

Code[.]” But what does it mean for Mays to be “in violation of R.C. 2919.27 . . . 

(B)(3)?” Unlike R.C. 2919.27(A)(1), division (B)(3) does not state any positive 

prohibition that a person could be “in violation of.” It states:

(3) Violating a protection order is a felony of the fifth degree 

if the offender previously has been convicted of, pleaded guilty to, 

or been adjudicated a delinquent child for any of the following:
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(a) A violation of a protection order issued or consent 

agreement approved pursuant to section 2151.34, 2903.213, 

2903.214, 2919.26, or 3113.31 of the Revised Code;

(b) Two or more violations of section 2903.21, 2903.211, 

2903.22, or 2911.211 of the Revised Code, or any combination of 

those offenses, that involved the same person who is the subject of 

the protection order or consent agreement;

(c) One or more violations of this section.

R.C. 2919.27(B)(3). Not only is it grammatically unclear how a defendant could 

be “in violation of” division (B)(3), it is unclear which of the three circumstances 

(if any) in subdivisions (B)(3)(a) through (c) applied to Mays. The mere mention 

of (B)(3)—and in a grammatically nonsensical way, at that—is simply not the same 

thing as stating the degree of the offense or requiring the jury to factually find the 

elevating elements.

B. Plain error

{¶ 42} Despite the fact that the majority’s decision finds that the verdict 

form complied with R.C. 2945.75(A), the decision then meanders through a lengthy 

dictum discussion in which it concludes that we should apply a plain-error analysis 

because Mays did not object to the verdict form at trial—even though the verdict 

form’s error benefited him.

{¶ 43} Plain error is simply this:

Crim.R. 52(B) affords appellate courts discretion to correct 

“[p]lain errors or defects affecting substantial rights” 

notwithstanding an accused’s failure to meet his obligation to bring 

those errors to the attention of the trial court. However, the accused 

bears the burden to demonstrate plain error on the record, State v. 
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23

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, 

¶ 16, and must show “an error, i.e., a deviation from a legal rule” 

that constitutes “an ‘obvious’ defect in the trial proceedings,” State 

v. Barnes, 94 Ohio St.3d 21, 27, 2002-Ohio-68, 759 N.E.2d 1240 

(2002).

Even if the error is obvious, it must have affected substantial 

rights, and “[w]e have interpreted this aspect of the rule to mean that 

the trial court’s error must have affected the outcome of the trial.” 

Id. We recently clarified in State v. Rogers, 143 Ohio St.3d 385, 

2015-Ohio-2459, 38 N.E.3d 860, that the accused is “required to 

demonstrate a reasonable probability that the error resulted in 

prejudice—the same deferential standard for reviewing ineffective 

assistance of counsel claims.” (Emphasis sic.) Id. at ¶ 22, citing 

United States v. Dominguez Benitez, 542 U.S. 74, 81-83, 124 S.Ct. 

2333, 159 L.Ed.2d 157 (2004).

(First emphasis added.) State v. Thomas, 2017-Ohio-8011, ¶ 32-33.

{¶ 44} The first problem with the view that plain-error analysis applies here 

is that the statute itself states the consequence for failure to write a verdict form 

with sufficient specificity: “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 [so as to make an offense one of more serious degree]. 

Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the 

offense charged.” (Emphasis added.) R.C. 2945.75(A)(2). It is farcical to analyze 

whether there is a “reasonable probability” that the verdict form affected the 

outcome, since the statute provides that it does. See Thomas at ¶ 33. Because the 

verdict form did not “state either the degree of the offense of which the offender 

[was] found guilty, or that [an] additional element or elements [were] present” so 
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as to make the offense one of more serious degree, the “guilty verdict constitutes a 

finding of guilty of the least degree of the offense charged.” R.C. 2945.75(A)(2).

{¶ 45} The second and more serious problem with the majority’s attempt to 

apply a plain-error analysis in Mays’s case is that he did not have the obligation to 

raise the verdict-form issue. The statute clearly provides that a failure of a verdict 

form to comply with R.C. 2945.75(A)(2) results in the conviction’s being the least 

serious degree of the offense. In Mays’s case it was the prosecution that was 

aggrieved by the error because if Mays is successful on appeal, his conviction will 

be for the less-serious offense. See State v. Bates, 2022-Ohio-475, ¶ 20 (“the party 

that benefits from an error cannot be the party aggrieved”). So, the obligation lay 

with the State to bring to the attention of the trial court a more specific verdict form 

for the jury to use to make the necessary specific findings. See Thomas at ¶ 32.

{¶ 46} Counsel for an accused who is charged with a multi-level offense 

and who is presented with a verdict form that does not set forth the required 

language of R.C. 2945.75(A)(2) for a higher-level criminal conviction cannot be 

said to be obligated to betray his or her client’s interest by objecting to and insisting 

that the verdict form be altered to increase the client’s criminal exposure. At no 

time when the prosecution fails to present evidence on an element of an offense 

does the defense have a duty to remind the prosecution to do so or face a plain-error 

review when challenging the sufficiency of the conviction on appeal. The 

majority’s dicta on plain-error analysis turns the adversarial system on its head and 

places the burden on counsel for the accused to act against a client’s interest or else 

forfeit the error on appeal.

{¶ 47} The majority’s decision is unsound in another way—its review of 

our precedent. It makes much of its belief that the issue whether to apply plain 

error was not analyzed in Pelfrey or McDonald. However, whether to apply plain 

error was, in fact, considered in both cases and rejected by the majority in both 

cases. In Pelfrey, the majority essentially held that plain-error review did not apply: 
January Term, 2024

25

“The express requirement of the statute cannot be fulfilled by . . . showing that the 

defendant failed to raise the issue of the inadequacy of the verdict form.” Pelfrey, 

2007-Ohio-256, at ¶ 14. Justice O’Donnell (the authoring justice of the Eafford 

majority opinion) expressed confusion about this court’s holding in Pelfrey in his 

dissenting opinion, stating that he “c[ould ]not understand” why the error was not 

deemed waived when Pelfrey “did not raise it in the trial court at a time that the 

court could have prepared a different verdict form,” Pelfrey at ¶ 25 (O’Donnell, J., 

dissenting), so as to ensure that Pelfrey would be convicted of a felony rather than 

a misdemeanor, id. at ¶ 26-34 (O’Donnell, J., dissenting). The answer to Justice 

O’Donnell’s query is that the issue was not forfeited, because it is not the 

defendant’s obligation to object to a scantly drafted verdict form that by law 

resulted in his being convicted of a lesser—rather than greater—offense. As the 

majority in Pelfrey held, the statute itself specifies that failure to include the 

language on the jury form results in “‘a guilty verdict constitut[ing] a finding of 

guilty of the least degree of the offense charged,’ ” id. at ¶ 12, quoting R.C. 

2945.75(A)(2), precluding the possibility that an error would not affect the outcome 

of the case.

{¶ 48} In McDonald, although plain error was not explicitly analyzed in the 

written decision, the issue was raised by Justice O’Donnell during oral argument. 

Counsel for McDonald explained that since a verdict form’s failure to comply with 

R.C. 2945.75(A)(2) results in a finding of the least degree of the offense charged, 

the burden to raise the issue and ensure that the verdict is intelligible as a higherlevel offense rests on the prosecution. The Ohio Channel, Case No. 2012-1177 

State of Ohio v. Scotty R. McDonald, at 4:50-6:55, https://www.ohiochannel.org

/video/case-no-2012-1177-state-of-ohio-v-scotty-r-mcdonald (accessed Aug. 15, 

2024). Notably, after this explanation, Justice O’Donnell did not author a dissent 

in McDonald raising plain error—perhaps signaling his agreement that plain error 

does not apply, as Pelfrey originally held. See McDonald, 2013-Ohio-5042. Nor, 
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for that matter, did any other dissenting justice in McDonald suggest that plain error 

would apply. See id. at ¶ 30-36 (French, J., dissenting). In short, contrary to the 

majority’s supposition, plain error was considered and rejected in both Pelfrey and 

McDonald, and the majority provides no convincing basis for overruling either 

decision.

{¶ 49} Additionally, a plain-error analysis is inappropriate for verdict-form 

errors when such analysis opens the door to a court usurping the jury’s fact-finding 

role. To notice plain error, the court must find that the error affected “substantial 

rights.” Eafford, 2012-Ohio-2224, at ¶ 11. That has been interpreted to mean that 

the error must have affected the outcome of the trial. Id. In Eafford, the majority 

concluded that the alleged error with the jury-verdict form did not affect the 

outcome of the trial, because “[t]he state intended to prove the accused guilty of 

possession of cocaine, it did so, and the jury in accordance with its findings 

rendered a verdict in conformity with the evidence presented by the state that 

Eafford possessed cocaine.” Id. at ¶ 18. The dissenting opinion in Eafford

disagreed and noted the settled law that a court may not usurp the fact-finding of a 

jury through judicial findings. Eafford at ¶ 20 (Lanzinger, J., dissenting), citing 

Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely v. Washington, 542 U.S. 296 

(2004), and State v. Foster, 2006-Ohio-856, abrogated on other grounds by Oregon 

v. Ice, 555 U.S. 160 (2009); see also McDonald, 2013-Ohio-5042, at ¶ 28 

(Lanzinger, J., concurring).

{¶ 50} Here, the majority concluded (in dicta) that any deficiencies in 

Mays’s verdict form under R.C. 2945.75(A)(2) would not affect his substantial 

rights, “[b]ecause it is uncontested that Mays’s offense constituted a felony of the 

fifth degree,” majority opinion, ¶ 27. But what if it was contested? What if a court, 

faced with a jury-verdict form that does not comply with R.C. 2945.75(A)(2) 

because it does not state the degree of the offense of which the offender is found 

guilty or that such additional element or elements are present, fills in the blanks for 
January Term, 2024

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purposes of its plain-error analysis with its own determination of what degree of 

the offense should apply or which additional factual elements it deems present? 

That would be a clear usurpation of the jury’s fact-finding role in violation of 

Apprendi and related cases. For that reason, courts should use caution in adopting 

the majority’s dicta in this case. Instead, the relevant question in cases asserting a 

violation of R.C. 2945.75(A)(2) is whether the verdict form complies with the plain 

language of the statute.

IV. CONCLUSION

{¶ 51} The verdict form in this case did not “state either the degree of the 

offense of which the offender is found guilty, or that such additional element or 

elements [we]re present” so as to elevate the offense; therefore, the jury’s verdict 

“constitutes a finding of guilty of the least degree of the offense charged,” R.C. 

2945.75(A)(2). Mays should not be convicted of a fifth-degree felony—he was 

found guilty instead of a first-degree misdemeanor. See R.C. 2919.27(B)(2) 

through (3). Moreover, because R.C. 2945.75(A)(2) is explicit about the 

consequence of a failure to include the necessary language and the lack of 

specificity in the verdict form would have benefited Mays, any burden to object to 

the error falls to the State—to whom the application of the plain-error doctrine has 

never applied in this case. We should answer the certified question in the negative 

and reverse the decision of the Sixth District Court of Appeals. Because the 

majority does not, I respectfully dissent.

__________________

Julia R. Bates, Lucas County Prosecuting Attorney, and Evy M. Jarrett, 

Assistant Prosecuting Attorney, for appellee.

Patituce & Associates, L.L.C., Joseph C. Patituce, and Catherine Meehan, 

for appellant.
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Dave Yost, Attorney General, T. Elliot Gaiser, Solicitor General, and 

Samuel C. Peterson, Deputy Solicitor General, urging affirmance for amicus curiae,

Ohio Attorney General Dave Yost.

__________________