Although the verdict form did not conform to state law because it failed to specify whether the jury found the defendant guilty of a felony or a lesser offense, the Supreme Court of Ohio ruled today that the conviction will stand because the defendant did not object to the omission at trial and failed to show that it affected a substantial right. The Court concluded that, under the circumstances of the case, the degree of the charged offense was clear, so the defect in the verdict form did not affect the outcome.

In a 6-1 decision, the Supreme Court affirmed Mahad Khalif’s 2023 conviction for discharging a firearm on or near prohibited premises. Khalif was convicted of the felony-level crime because he created a substantial risk of harm as he tried to stop thieves from stealing his car. Khalif shot at the vehicle as it was driving in Khalif’s direction down a Columbus-area street.

Writing for the Court majority, Justice Joseph T. Deters explained the jury’s verdict form did not specify if Khalif was guilty of the felony or the misdemeanor version of R.C. 2923.162 for discharging the firearm. But Khalif’s attorney did not object to the form’s lack of specificity, nor did he object when the trial court judge indicated the jury found Khalif guilty of a felony.

Because Khalif’s attorney did not object, Khalif had to prove on appeal that the trial judge made a plain, or obvious, error, and the jury’s decision would have been different had the form indicated he was being charged with a felony.

“Khalif cannot demonstrate plain error, because the circumstances surrounding his trial make clear that he was found guilty of the elevated offense,” Justice Deters wrote.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, Daniel R. Hawkins, and Megan E. Shanahan joined Justice Deters’ opinion.

In a dissenting opinion, Justice Jennifer Brunner wrote that the error was made by prosecutors by not including the correct information on the form, and it was the state’s job, not Khalif’s, to point it out before the jury deliberated. Because the trial court made an obvious error, Khalif should only be penalized for the lesser misdemeanor version of the crime, she concluded.

Man Charged for Shooting at His Stolen Car
Khalif alleged that he parked in front of a restaurant in February 2021, and that his car was stolen while he was momentarily inside. He said when he exited the restaurant, he saw his car being driven away. As he ran to catch the car, the driver turned and started heading in Khalif’s direction. Khalif admitted to shooting at the car while it was on the street and said he fired his gun as the driver drove past him.

The vehicle was eventually recovered, and police photographs indicated a bullet hole in the car’s front fender. Khalif was charged with felonious assault and discharge of a firearm on or near prohibited premises. Both counts included a firearm specification.

The grand jury indictment indicated the Franklin County Prosecutor’s Office had charged Khalif with a felony violation of R.C. 2923.162 because discharging the firearm also had the additional element of creating “a substantial risk of physical harm to any person or caused serious physical harm to property.” Khalif was also provided with a bill of particulars indicating he was charged with the third-degree felony because it created a substantial risk of harm.

Khalif’s first trial ended in a mistrial. At his second trial, the prosecution presented the photographs of the vehicle with the bullet hole and stressed that firing a weapon at a vehicle is “inherently dangerous.”

After the closing arguments, the judge instructed the jurors that they could find Khalif guilty of the firearm violation if they found beyond a reasonable doubt that “the defendant discharged a firearm upon or over a public road or highway, and the violation created a substantial risk of physical harm to any person or caused serious physical harm to the property.”

The trial judge also gave the jury an instruction on self-defense because Khalif claimed that he had shot at the car in an attempt to stop the vehicle from hitting him.

The jury was presented with jury verdict forms, which jurors could sign and submit if they agreed to convict Khalif. One form stated: “We, the jury being duly impaneled and sworn in this case, find the defendant, Mahad M. Khalif, guilty of discharge of firearm on or near prohibited premise as charged in Count Two of the indictment.” The judge read the form to the jury, and no one objected.

The jury was unable to reach a verdict on the felonious assault charge but did find him guilty of the firearm discharge offense. No objection was raised when the verdict was read. And after it was read, prosecutors requested that Khalif’s bond be revoked because he was convicted of a felony. Although he objected to the bond revocation, Khalif’s attorney did not object to the characterization that the offense was a felony.

Khalif was sentenced to nine months in prison, and the trial court also imposed the mandatory three-year prison term for the firearm specification. The trial judge expressed regret for having to sentence Khalif to 45 months in prison; however, there was no indication that Khalif objected to being sentenced for a felony rather than a misdemeanor.

Khalif appealed his conviction to the Tenth District Court of Appeals. The appeals court found that because the verdict form did not state the degree of offense, R.C. 2945.74(A)(2) required that he be sentenced to the lowest degree of the crime, which was a misdemeanor.

The Tenth District vacated Khalif’s conviction and the firearm specification and remanded the case to the trial court to convict him of the misdemeanor level of the crime.

The prosecutor appealed the decision to the Supreme Court.

Supreme Court Analyzed Form Requirement
R.C. 2945.75(A)(2) states that when one or more elements of an offense raise the degree of a charge to a more serious crime, a guilty verdict should either state the degree of the offense or indicate the presence of the additional elements. If the verdict does not state the degree or the presence of the additional element, the guilty verdict constitutes a finding of guilty for the least degree of the offense.

The verdict form neither stated that Khalif was being charged with a third-degree felony nor stated that the state proved he created a substantial risk of harm, Justice Deters explained. The prosecution argued that because it included the phrase “as charged in Count Two of the indictment,” it met the requirements of R.C. 2945.75(A)(2) because the indictment stated Khalif was being charged with a felony.

The opinion stated that citing a separate document, the indictment, does not comply with the law.

But because Khalif did not object, Khalif’s conviction could be overturned only if the Court found the trial court committed plain error. To find plain error, the Court must find that there was an obvious error, and there must be a reasonable probability that the error affected the outcome of the trial. The Court also found plain error should be used “only to prevent a manifest miscarriage of justice.”

The Court stated there is “no question that there was an error.” But Khalif failed to prove his substantial rights were affected because the indictment clearly charged him with the greater degree and stated that he created a substantial risk of harm, the opinion explained. The Court noted that during the trial, the prosecution argued Khalif created a substantial risk of harm, and when the trial judge instructed the jury, the jurors were told they could only convict Khalif if they found he created a substantial risk of harm.

“Khalif has not demonstrated that had the verdict form stated that the offense was a third-degree felony or that his actions created a substantial risk of physical harm, the jury would have reached a different decision,” the Court stated.

The Court remanded the case to the Tenth District to consider Khalif’s other claim in his appeal, which was that the evidence did not support his felony conviction.

Error Merits Lower Sentence, Dissent Maintained
In her dissent, Justice Brunner wrote that Khalif proved he was harmed by the trial court’s plain error. She explained that the obligation to bring an error to the trial court’s attention falls on the party that would be harmed by the error. Before the jury deliberated, only the state could have been harmed by the failure to specify the charge against Khalif because it could have resulted in him receiving a misdemeanor conviction. It was not Khalif’s obligation to point out an error that could benefit him, she wrote. Khalif only had an obligation to raise the issue after the verdict was read.

The form was insufficient to support the conviction and sentence, and the Court should have concluded it was plain error to prevent a miscarriage of justice, the dissent stated.

“Left uncorrected, the error will cause Khalif to serve three years and nine months in prison for a third-degree felony, when, as a matter of statutory law, the verdict form supports a guilty verdict of only a first-degree misdemeanor, which is punishable by a maximum of six months in county jail,” she wrote.

Forcing Khalif to serve a sentence seven times longer than the law allows “would be gravely unjust,” she stated.

2024-0930. State v. Khalif, Slip Opinion No. 2026-Ohio-2689.

View oral argument video of this case.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.