In a decision announced today, the Supreme Court of Ohio held that when the state seeks to elevate the level of a current domestic violence charge against a defendant based on that person’s prior conviction(s) for domestic violence:
1) Submitting a judgment entry of conviction from a court journal pursuant to R.C. 2945.75(B)(1) is not the exclusive means by which the state may validly prove a prior conviction.  
2) If the state chooses to submit a journal entry as its proof of a prior domestic violence conviction, that entry must contain all of the elements of a final order of conviction as set forth in Ohio Civil Rule 32(C).

The court’s 5-2 majority opinion, authored by Justice Judith Ann Lanzinger, affirmed a judgment of the Ninth District Court of Appeals but disagreed with some of the legal analysis in the court of appeals’ decision.

The case involved the prosecution of Jeffrey Gwen of Akron, who was arrested and charged with domestic violence and possession of drug paraphernalia in March 2009 after police responded to a 911 call made by his girlfriend, Monee Fannin.

The domestic-violence charge was enhanced to a third-degree felony under the statute applicable to third-time offenders, R.C. 2919.25(D)(4).  Gwen pled not guilty. A jury found him guilty on both counts, and he was sentenced to one year of incarceration for domestic violence and 30 days for the drug offense, to be served concurrently.

Gwen appealed, arguing that court documents that had been admitted as evidence of prior domestic-violence convictions were not legally sufficient to support elevating his 2009 offense to a third-degree felony, because those documents did not meet specific content requirements for a “final judgment of conviction” set forth in Ohio Crim.R. 32(C).

One item, State’s Exhibit 4, was a certified journal entry from the Summit County Court of Common Pleas, showing that Gwen had pled guilty in 2002 to domestic violence as a minor misdemeanor in violation of R.C. 2919.25(A). This was erroneous, however,  because domestic violence under R.C. 2919.25(A) is a misdemeanor of the first degree and not a minor misdemeanor.

The second item, State’s Exhibit 3, consisted of a series of documents relating to a charge of domestic violence that was prosecuted against Gwen in the Akron Municipal Court during 2000 to 2001.  It included a docket statement, a police incident report, a criminal complaint charging Gwen with domestic violence under R.C. 2919.25(A), a temporary protection order, and a journal entry.  The certified journal entry was a printed form with spaces provided for the relevant data, such as plea entered, disposition, sentence, and the like.  The entry did show that Gwen had pled not guilty, that he was sentenced to 30 days, with credit for three days served, fined $50, and ordered to pay costs on the domestic-violence charge. But the spaces provided for recording whether Gwen had been found guilty or not guilty were blank.

The court of appeals rejected Gwen’s argument that State’s Exhibit 4 was fatally defective because it misidentified the offense as a minor misdemeanor, finding no authority that such an error renders the evidence of conviction inadmissible.  Nevertheless, the court held that even if it was error to rely on this entry as proof of a prior conviction, that error was harmless because Gwen had testified that he had been convicted of domestic violence. With regard to State’s Exhibit 3, however, the court of appeals found the Akron Municipal Court’s disposition of that case to be unclear. Since there was no other evidence that Gwen had been convicted of or pled guilty to domestic violence in that case,  the Ninth District held that the state had proven one, rather than two, prior domestic violence convictions.

Accordingly, the Ninth District affirmed Gwen’s 2009 domestic-violence conviction, but as second-offense count that was chargeable as a fourth-degree felony, rather than a third-offense count chargeable as a third-degree felony. The court also held that compliance with Crim.R. 32(C) was not a prerequisite to proving a prior offense for purposes of increasing a later charge.

The Ninth District certified that its holding was in conflict with a 2006 decision in which the Sixth District held that in order to support enhancement of a current domestic relations charge, a journal entry of a prior conviction must meet the requirements of Crim.R.32(C). The Supreme Court agreed to review to case to resolve the conflict between appellate districts.

Writing for the majority in today’s decision, Justice Lanzinger agreed with the Ninth District’s determination that while R.C. 2945.75(B) specifies that a journal entry is sufficient to prove a prior domestic violence conviction, the law does not say such an entry is the only valid method of proof.  “For example,” Justice Lanzinger wrote, “an offender may, and often does, stipulate to a prior conviction to avoid the evidence being presented before a jury.”  In this case, she noted, although the state’s Exhibit 4 inaccurately stated that Gwen’s 2002 conviction had been for a “minor misdemeanor” count of domestic violence, Gwen admitted that he had been convicted  of domestic violence in the case to which that entry referred, and Gwen’s admission served as proof of the prior offense notwithstanding the incorrect journal entry.

The majority opinion also agreed with the court of appeals’ conclusion that the documents submitted as State’s Exhibit 3 were insufficient to prove a second prior domestic violence conviction by Gwen. However, Justice Lanzinger disagreed with the legal analysis underlying the Ninth District’s ruling.

Citing the Supreme Court of Ohio’s decisions in State v. Baker (2008) and State v. Lester (2010), Justice Lanzinger wrote that pursuant to Crim.R. 32(C): “A final appealable judgment entry of conviction must contain (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and (4) the time stamp indicating the entry upon the journal by the clerk. When the state chooses to provide a judgment of conviction pursuant to R.C. 2945.75(B)(1), the entry must comply with Crim.R. 32(C).  This will be ‘sufficient’ proof of the conviction.”  

“Gwen objects to the admission of State's Exhibits 3 and 4, arguing that the entries do not meet the requirements of Crim.R. 32(C) and State v. Baker. The court of appeals agreed that State’s Exhibit 3 was insufficient, and we agree on that point.  However, we do not agree that Exhibit 3 need not comply with Crim.R. 32(C). ...  (W)e hold that when, pursuant to R.C. 2945.75(B)(1), the state chooses to offer judgment entries to prove the element of prior domestic-violence convictions in order to increase the offense level of a later domestic-violence charge under R.C. 2919.25(D)(4), the judgments must comply with Crim.R. 32(C).” 

Justice Lanzinger’s opinion was joined by Chief Justice Maureen O’Connor and Justices Paul E. Pfeifer, Robert R. Cupp and Yvette McGee Brown.

Justice Terrence O’Donnell entered a separate opinion, joined by Justice Evelyn Lundberg Stratton, in which he concurred with the majority holding that prior domestic violence convictions may be proven by means other than a judgment entry, but disagreed with the majority’s holding that when the state uses a journal entry of conviction as its proof, the entry must comply with the finality requirements of Crim.R. 32(C).

Justice O’Donnell wrote: “R.C. 2919.25(D) does not mention or contain any reference to Crim.R. 32(C), and it contains no language suggesting that an entry of judgment offered by the state to prove a prior conviction must include the technical requirements for finality, which has developed in the context of appealable orders for the purpose of providing a date certain from which the time for appeal begins to run, and which shares neither context nor purpose with offense enhancement.  Thus, in my view, reading R.C. 2919.25(D) as requiring compliance with Crim.R. 32(C) adds an element that does not exist in the statute.  As such, that reading violates the rule of construction that we give legal effect to the words of a statute, as well as the principle that an unambiguous statute may not be modified by adding or deleting words.”

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2011-0632. State v. Gwen, Slip Opinion No. 2012-Ohio-5046.
Summit App. No. 25218, 2011-Ohio-1512.  Judgment affirmed.
O’Connor, C.J., and Pfeifer, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Lundberg Stratton and O’Donnell, JJ., concur in part and dissent in part.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-5046.pdf

View oral argument video of this case.