Wednesday, August 20, 2025
State of Ohio v. Mahad M. Khalif, Case No. 2024-0930
Tenth District Court of Appeals (Franklin County)
State of Ohio v. Jason T. Hikec, Case No. 2024-0965
Fifth District Court of Appeals (Fairfield County)
State of Ohio ex rel. AWMS Water Solutions LLC et al. v. Mary Mertz, director, Ohio Department of Natural Resources et al., Case No. 2024-1433
Eleventh District Court of Appeals (Trumbull County)
Did Jury Verdict Specify That Man Who Shot At Own Vehicle Committed a Felony?
State of Ohio v. Mahad M. Khalif, Case No. 2024-0930
Tenth District Court of Appeals (Franklin County)
ISSUE: Does a reference in a jury verdict form to “as charged in the indictment” meet the state law requiring a jury verdict to either specify the degree of the offense or additional elements of an offense that lead to a greater punishment?
BACKGROUND:
Mahad Khalif is a Somali immigrant and commercial truck driver. He had received a license to carry a concealed weapon. On a snowy day in February 2021, Khalif drove his father’s SUV to a restaurant in Blendon Township, Franklin County. Because of the snow and rain, Khalif left the engine on, and he went into the restaurant to get a non-alcoholic drink to go. When he walked outside, the SUV was gone. Khalif spotted the vehicle at an intersection, and the driver was turning the SUV around and driving toward Khalif.
Khalif said he stepped into the road to try to stop the vehicle. He said the road was slippery, and fearing he was going to fall in front of the car, he took out a pistol he was carrying and shot at the SUV. He had no luck in stopping the vehicle, which pulled away. Khalif called the police from the restaurant and reported the incident. The SUV was recovered two days later. The thieves were never located, and no one was reported injured from the incident. The vehicle did have a bullet hole in the front fender.
Shooter Faced Charges for Dangerous Reaction
Investigators believed Khalif created a risk of serious harm by firing a gun in a roadway surrounded by a mix of houses, apartments, and businesses. The Franklin County Prosecutor’s Office charged him with felonious assault and discharging a firearm on or near a prohibited premises, which is also known as “unlawful discharge.” A grand jury indicted Khalif on the charges, specifying he was charged with a second-degree felony of felonious assault, and a third-degree felony of discharging a firearm on or near a prohibited premises, under R.C. 2923.162.
Discharging a firearm on or near a prohibited premises is a misdemeanor under R.C. 2923.162 unless other conditions exist. Under subsection (C)(2), the offense rises to a third-degree felony if the discharge “created a substantial risk of physical harm to any person or caused serious physical harm to property.” Count two of Khalif’s indictment stated he was charged with unlawful discharge because he “created a substantial risk of physical harm to any person or caused serious physical harm to property.”
Khalif was offered a plea deal to reduce all the charges to a single charge of criminal mischief, which he refused. He argued he was entitled to claim self-defense, but the trial judge ruled Khalif had not met the requirements of the law at the time of the incident to raise the defense.
Jury Convicts Shooter of Unlawful Discharge
At his trial, the prosecutor argued that Khalif didn’t express any fear for his life or claim he shot at the vehicle in self-defense when speaking to police, but only made the claim after he was indicted. The prosecutor noted the unlawful discharge offense noted that Khalif created a substantial risk of physical harm.
The trial court instructed the jury that Khalif could be found guilty only if he discharged the firearm on the road and created a substantial risk of physical harm or caused serious physical harm to property. Neither party requested that the jury be given the alternative of a lesser-included offense, and no one objected to the jury instructions or jury forms.
The jury found Khalif guilty of the unlawful discharge offense, which carried a three-year firearm specification. The jury form stated the jury found Khalif “Guilty of DISCHARGE FIREARM ON/NEAR PROHIBITED PREMISE, as charged in Count Two of the Indictment.”
The trial judge expressed that he didn’t agree with the severity of punishment required under the law, but couldn’t do anything to reduce Khalif’s sentence. He was sentenced to the mandatory three-year prison term for the firearm specification and nine months for unlawful discharge, for a total of 45 months in prison.
Khalif appealed his conviction and sentence to the Tenth District Court of Appeals. The Tenth District ruled that under R.C. 2945.75, if the jury’s verdict doesn’t state the degree of the offense or the elements that increase a penalty, the least degree of the offense charged must be imposed. Because the verdict form didn’t specify which degree of unlawful discharge the prosecution sought, the Tenth District reversed the trial court’s decision. It directed the trial court to enter a conviction for a misdemeanor-level violation of unlawful discharge.
The prosecutor’s office appealed the decision to the Supreme Court of Ohio, which agreed to hear the case.
Verdict Form Met Requirement for Felony Conviction, Prosecutor Asserts
The prosecutor explains the Tenth District reversed the trial court’s decision based on the precedent set by the Supreme Court’s 2007 State v. Pelfrey decision. The prosecutor maintains that the Court in Pelfrey found that under R.C. 2945.75(A)(2), a jury verdict form must include the degree of the offense or specify the elements that increase the level of the offense. The office argues the decision should be overturned, and R.C. 2945.75(A)(2) should be read as considering the degree of the offense “charged in the case.”
The Tenth District overturned Khalif’s sentence because the jury verdict form stated he was guilty of discharge of a firearm on or near a prohibited premise. It didn’t include the second provision regarding the creation of a substantial risk of physical harm or harm to property, the prosecutor notes. It only stated “as charged in count two.” Count two contained the full charge, which was the felony level of unlawful discharge. The Tenth District found that under Pelfrey, it wasn’t sufficient just to cite the indictment. Instead, the form had to indicate Khalif was being charged with a felony or that his charge included the element of substantial risk, the court ruled.
The prosecutor argues that the jury was presented with one charge, the felony version of unlawful discharge. The charge was stated in the indictment, and it was argued throughout the trial that Khalif’s crime met both the elements of discharging a weapon and creating a substantial risk of harm, the prosecutor notes. Since Pelfrey was decided, some lower courts have indicated R.C. 2945.75(A)(2) doesn’t require the form to specify the degree if it provides a sufficient reference to the crime charged. In this case, the jury only heard about and was only presented the option of one charge for unlawful discharge, the felony-level of the offense, the prosecutor states. All parties understood that was the charge in the case, and the conviction shouldn’t be overturned based on a narrow interpretation of R.C. 2945.75(A)(2), the prosecutor concludes.
No Justification for Different Interpretation of Law, Offender Asserts
Khalif notes the Court has followed Pelfrey since 2007, and the General Assembly has had ample time to review the wording of R.C. 2945.75 since the decision. The legislature has made no move to modify the language or the requirement that the verdict must state the degree of the offense, Khalif notes. The prosecution’s boilerplate use of “as charged in the indictment” is insufficient, and the prosecutor has presented no “compelling reason” for the Supreme Court to revisit its decision, he argues.
Khalif notes the jury didn’t indicate in its ruling whether he committed the felony-level or misdemeanor-level offense of unlawful discharge. In that case, the trial court should have imposed a sentence for the lesser misdemeanor offense, he asserts. As a consequence, as of January, Khalif has served more than 16 months in confinement for an offense that is punishable by a maximum of six months in jail.
He maintains the Pelfrey decision is consistent with centuries of precedent on criminal sentencing and that the Tenth District’s application of the ruling to his case should stand.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing the State of Ohio from the Franklin County Prosecutor’s Office: Michael Walsh, mwalsh@franklincountyohio.gov
Representing Mahad Khalif: Dennis Belli, bellilawoffice@yahoo.com
Were Text Messages About Firearms Admitted at Trial Harmless?
State of Ohio v. Jason T. Hikec, Case No.2024-0965
Fifth District Court of Appeals (Fairfield County)
ISSUE: Can a court’s limiting instruction to the jury make the admission of illegally obtained evidence harmless?
BACKGROUND:
On April 27, 2022, Stephanie Werner reported to the Lancaster Police Department that she was assaulted. She said she went the day before to pick up her mail at the residence of her ex-boyfriend, Jason Hikec. She had lived there until a few weeks earlier, when they had broken up. During their year-and-a-half romantic relationship, Werner also worked for Hikec, whose business was in the same building as his apartment. She told police that Hikec attacked her, butting his head against hers multiple times and punching her, and that he held her against her will and took her cellphone. When he left and went to a nearby garage, she exited the apartment and drove home.
Police interviewed Hikec that day, and he denied the allegations. Police obtained search warrants. During a search of Hikec’s residence on May 3, police found operable firearms and large quantities of methamphetamine in two safes. Police also executed a warrant to search Hikec’s cellphone. The warrant allowed a search for “any present or historical data,” including text messages and call histories.
A Fairfield County grand jury indicted Hikec on counts of felonious assault, aggravated drug possession, and having weapons illegally, along with firearm and forfeiture specifications.
Defendant Wants Text Messages About Firearms Excluded From Trial
During the trial court proceedings, Hikec’s attorney asked the judge to suppress cellphone evidence that referenced the possession of firearms. A text message from April 14, 2022, sent to Hikec stated, “I’ll give you a firearm.” In a response the next day, Hikec wrote, “Now that she’s out and I can safely have them at my place, can I still come by and get my guns tomorrow?”
The trial court declined the request to exclude the text messages. A four-day jury trial began on March 28, 2023. The judge admitted the text messages and gave the jury an instruction limiting how they could consider the information. The judge told jurors that the texts weren’t direct evidence that Hikec owned or possessed the firearms on the date of the alleged offenses against Werner and couldn’t be considered for that purpose.
The jury found Hikec guilty on all counts and specifications. He was sentenced to a definite term of 11 years in prison and an indefinite term of 13.5 years. Hikec appealed to the Fifth District Court of Appeals.
In May 2024, the Fifth District ruled that the cellphone search warrant was overly broad, lacking specificity on what information was being sought. The good faith exception for officers who rely on a court-issued warrant didn’t apply because the warrant was clearly deficient, the appeals court determined. However, the errors were harmless because of the limiting instruction given to the jury, the court concluded in upholding the convictions.
Hikec appealed to the Supreme Court of Ohio, which accepted the case.
Offender Argues Cellphone Search Was Unconstitutional, Texts Must Be Excluded
Hikec maintains that the Fifth District correctly ruled that the cellphone search warrant was overly broad, lacking the specificity required by the U.S. Constitution’s Fourth Amendment. He also agrees with the Fifth District that the good faith exception to an improper search didn’t apply. Hikec argues the ruling is supported by the Supreme Court of Ohio’s decision in State v. Castagnola (2015). The Supreme Court found that the warrant in Castagnola improperly allowed a search of “all records and documents” on the defendant’s computer, and the good faith exception for law enforcement didn’t apply because the warrant was deficient.
Hikec argues the text messages should have been excluded at his trial because the evidence was obtained in violation of the Fourth Amendment. A limiting instruction to the jury doesn’t overcome an unconstitutional search, nor was the constitutional error harmless, he contends.
He also notes there were two searches of his residence, and the working firearms and large quantities of drugs weren’t found during the first search. He maintains he was in jail between the two searches. His defense argued the prosecutor couldn’t prove that Hikec was ever in possession of the working firearms or drugs. As a result, admitting the texts at trial wasn’t harmless beyond a reasonable doubt, and he is entitled to a new trial, he argues.
State Counters That Good Faith Applies, Jury Would Have Convicted Without Texts
The Fairfield County Prosecutor’s Office responds that the good faith exception applies. The prosecutor argues the police officer submitted a two-page affidavit to the court with factual details to support issuing the warrant. The affidavit noted that Hikec was on his cellphone when Werner arrived to pick up her mail; they had been in a relationship of more than a year, during which Werner said multiple physical assaults and threats occurred; and the cellphone could also access home surveillance footage of where the assault occurred.
Unlike the facts in Castagnola, the texts tied the cellphone to the allegations of felonious assault and domestic violence, the prosecutor contends. The prosecutor argues the broad nature of the warrant aligned with the circumstances in the case. And relying on the warrant, the officer seized text messages, which fell within the search description allowed by the warrant, the prosecutor notes. The officer had no reason to believe he wasn’t acting in accordance with a valid warrant, and the good faith exception should apply, allowing the jury to consider the texts, the prosecutor maintains.
Even if the exception doesn’t apply, the prosecutor argues Hikec received a fair trial because the admission of the text messages was harmless. The texts were incidental to the state’s case, and they didn’t “go to the crux of the offenses,” including Hikec’s convictions for felonious assault and drug possession, the prosecutor’s brief maintains. The brief contends that although the texts may have been relevant to the charges related to illegally having weapons, the jury had overwhelming evidence to support the convictions without the texts and without the limiting instruction. The messages “were so insignificant and unimportant to the outcome of the trial that any error related to their admission is harmless,” the brief states.
The jury instruction served as an additional, but unnecessary, protection of Hikec’s rights, the prosecutor also asserts. The trial court instructed the jury not to consider the texts as direct evidence of his guilt on those charges, and juries are presumed to follow instructions given to them, the prosecutor argues.
Lawyer Association Files Brief
An amicus curiae brief supporting Hikec’s position was submitted by the Ohio Association of Criminal Defense Lawyers.
– Kathleen Maloney
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing Jason T. Hikec: Stephenie Lape, steph@lapelawoffice.com
Representing the State of Ohio from the Fairfield County Prosecutor’s Office: Austin Lines austin.lines2@fairfieldcountyohio.gov
Did Appeals Court Overstep Its Authority When Deciding Disposal Well Dispute?
State of Ohio ex rel. AWMS Water Solutions LLC et al. v. Mary Mertz, director, Ohio Department of Natural Resources et al., Case No. 2024-1433
Eleventh District Court of Appeals (Trumbull County)
ISSUES:
- Was a state agency’s suspension of a brine disposal well’s operation a total or partial taking of the property?
- Did an appeals court overstep its authority by declaring a partial taking of disposal well property and establishing a damages award?
- Must a property create an imminent threat of harm to be declared a public nuisance?
BACKGROUND:
For the third time, the Supreme Court of Ohio will consider AWMS Water Solutions’ objections to lower court proceedings regarding suspending its brine water disposal facility operations. State officials cited the operation for causing minor earthquakes in 2014 in Trumbull County.
In this appeal, AWMS maintains the Eleventh District Court of Appeals improperly interpreted the Supreme Court’s 2024 decision remanding the dispute to the appellate court. AWMS argues the appellate court mistakenly concluded that the Ohio Department of Natural Resources (ODNR) instituted a “partial taking” of its disposal property. The court awarded the company $359,373 in damages. AWMS maintains that the appellate court should have declared that ODNR either totally or partially took the property where it was disposing of waste, and then allow a Trumbull County Probate Court to determine the amount of damages.
ODNR filed a counterclaim in this case, asserting that the Eleventh District wrongly concluded the property was taken. The agency has asked the Court to uphold its contention that the earthquake-causing wells were a public nuisance and that the state owes AWMS nothing.
Permit Suspension Sets Off Lengthy Legal Dispute
In December 2011, AWMS secured a lease from the owner of 5.2 acres of industrial property in Weatherfield Township in Trumbull County. The lease gave the company the exclusive right to operate disposal wells and install, operate, and maintain infrastructure to facilitate waste disposal from oil and gas drillers. That month, the company applied for ODNR permits to operate the two disposal wells: well #1 and well #2.
About a week after AWMS applied for permits, a 4.0-magnitude earthquake was recorded a few miles from the AWMS property. The event originated near another deep-well injection site and was felt by more than 4,000 people in parts of northeastern Ohio, western Pennsylvania, and Ontario, Canada. After the earthquake, former Ohio Gov. John Kasich imposed a moratorium on well-injection activities.
The moratorium delayed the processing of AWMS’ permits, but the company was authorized to use the two wells in July 2013. AWMS then spent $5.6 million to construct the wells and other infrastructure, including tanks and pumps. ODNR authorized the company to begin wastewater injections in March 2014. Four months later, a 1.7-magnitude earthquake was recorded near well #2, and a month later, a 2.1-magnitude quake was recorded in the same area.
ODNR ordered AWMS to suspend its operations of both wells, stating the earthquakes were related to the well operations. The agency later allowed well #1 operations to resume, but not well #2.
Company Seeks Compensation for Well Closure
AWMS sought ODNR permission to restart well #2, but was unsuccessful. In 2016, the company sought a writ of mandamus from the Eleventh District. AWMS wanted the appellate court to order ODNR to start a “property appropriation” proceeding, claiming that the state was, in effect, taking the property of the disposal company but not permitting it to operate. The Eleventh District dismissed the case, finding that ODNR regulation of the facility did not constitute a taking of property. AWMS appealed to the Supreme Court.
In 2020, the Supreme Court ruled there was a “genuine issue of material fact” concerning whether the state’s suspension of AWMS’ operation constituted a taking by depriving the company of all economically beneficial uses of its lease. The Supreme Court remanded the case to the Eleventh District with instructions to weigh the evidence related to AWMS’ claim that the state “totally” took the economic value of well #2 or “partially” took the value. The Supreme Court directed the Eleventh District to use a process set out by the U.S. Supreme Court to determine if AWMS suffered a partial taking.
Appellate Court Procedures Challenged Again
Based on the Supreme Court’s directive, an Eleventh District three-judge panel conducted a trial over several days in 2021. Instead of ruling on the merits, the court stated it had to first decide if AWMS had “property” that could be taken. The Eleventh District found AWMS didn’t have a property interest in the grounds it leased and dismissed the case.
AWMS appealed again to the Supreme Court. The Court stated in its prior ruling that AWMS did have a property interest in its lease, and somehow the Eleventh District failed to realize that issue had been resolved. In 2024, the Court remanded the case to the Eleventh District, instructing that the duty of the appeals court was to weigh the evidence to consider how much money, if any, the state owes AWMS.
When the case returned to the Eleventh District, one of the three judges who presided over the hearing had left the court and was replaced by a new judge. Instead of conducting further proceedings, the two judges who heard the evidence and the new judge, who reviewed trial transcripts, issued a decision. They concluded that under U.S. Supreme Court precedent, ODNR committed a partial taking of AWMS property. AWMS presented evidence that ODNR’s actions led to more than $20 million in losses. However, the Eleventh District sided with ODNR experts who calculated the loss at a maximum of $359,373.
AWMS appealed the appellate court’s decision again, and the Supreme Court agreed to hear the case.
Appeals Court Didn’t Follow Directive, Company Asserts
When the case was returned to the Eleventh District in 2024, the Supreme Court didn’t direct the appellate court to determine how much in damages ODNR owed, AWMS maintains. Instead, the only matter the Court authorized the appellate court to undertake was determining whether ODNR orders were a total or partial taking of its property. The Eleventh District could have determined whether the taking was partial or total, and then directed the case to the Trumbull County Probate Court where an appropriation proceeding would occur, the company asserts. It is in that proceeding that a damages assessment should be made, AWMS argues. The company maintains that it provided ample credible evidence that ODNR’s suspension of its injection operations and the conditions it must follow to reopen result in a massive financial loss totaling more than $20 million.
If the Supreme Court doesn’t want to remand the case to the Eleventh District for a third time, it could itself direct ODNR to begin an appropriations proceeding in probate court to assess the amount of damages it owes, the company concludes.
AWMS also found it impractical for the Eleventh District to make a damages assessment when the matter was remanded because one of the judges who presided over the trial was no longer on the bench. The successor judge reviewed transcripts of what the court considered, but never had the opportunity to hear the witnesses testify and to gauge their credibility. This is another reason why the appellate court should not have assessed the damages, but should have only considered whether a total or partial taking occurred, the company asserts.
Damages Not Justified, Site a Nuisance, Agency Asserts
ODNR opposes awarding damages to AWMS, but doesn’t oppose the Eleventh District’s authority to resolve the matter. The agency argues the appellate court conducted a thorough hearing and relied on the credible evidence of its witnesses to decide that the maximum amount of damages the state caused by suspending operations was $359,373. ODNR maintains that AWMS made a risky bet locating the wells in Trumbull County and told investors there was considerable risk. The loss of profits to a site caused by regulations that tightened the restrictions on how to operate doesn’t constitute a taking, the agency argues. There was no physical taking of the property that required compensation, and the U.S. Supreme Court has acknowledged that even a “commercially crippling” regulation doesn’t constitute a taking, the agency maintains.
ODNR objects to the Eleventh District’s conclusion that AWMS operations weren’t a public nuisance. The Eleventh District reasoned that since ODNR issued a restart order, the operation couldn’t constitute a nuisance. ODNR counters that the restart order added more restrictions and would prevent the company from being a nuisance. The agency notes that AWMS never reopened the wells even after receiving the restart order, and that its prior operations were a nuisance.
The appellate court also found the site wasn’t a nuisance because there was no evidence of an imminent threat to health or safety. The earthquakes recorded at the site weren’t felt by the communities, the court ruled. ODNR disputes that the quakes weren’t felt and also found that the law doesn’t require an operation to be an imminent threat to constitute a nuisance. The agency argues that the level of quakes was intensifying as AWMS continued to add more fluid to well #2, and the potential escalation of seismic activity could have been devastating to the surrounding communities. The Court should rule that the site constitutes a nuisance and rescind the damages award, the agency concludes.
Friend-of-the-Court Brief Submitted
An amicus curiae brief supporting ODNR’s position was submitted by Weatherfield Township.
– Dan Trevas
Docket entries, memoranda, briefs (including amicus briefs), and other information about this case may be accessed through the case docket.
Contacts
Representing AWMS Water Solutions LLC et al.: John Childs, jnchilds@bmdllc.com
Representing Mary Mertz, director, Ohio Department of Natural Resources et al., from the Ohio Attorney General’s Office: Mathura Sridharan, mathura.sridharan@ohioago.gov