October 24, 2012
Jury Findings and Verdict Forms

by Justice Paul E. Pfeifer

On May 8, 2009, Cleveland police officers executed a search warrant at a home on Rexford Avenue after an informant purchased a controlled substance there. When SWAT team members entered the house they found several people with crack cocaine and drug paraphernalia, and they found Donald Eafford – the man who leased the house – upstairs.

A search revealed drug paraphernalia in Eafford’s bedside table and a glass and rubber pipe with cocaine residue in his bathroom medicine cabinet.

A grand jury indicted Eafford on three charges, the second of which was possession of “cocaine or a compound, mixture, preparation, or substance containing cocaine in an amount of less than 5 grams.” Before the jury went into deliberations, the trial court instructed the jury on the second count as follows:

“Before you can find the defendant guilty” on Count Two, “you must find beyond a reasonable doubt that ... the defendant did knowingly obtain, possess or use a controlled substance, and the drug involved was cocaine or a compound, mixture, preparation or substance containing cocaine in an amount less than five grams.”

The jury returned guilty verdicts on two counts. The verdict form stated that the jury found Eafford guilty of “Possession of Drugs” as charged “in Count Two of the Indictment.” No one objected to the language of the forms, and the court subsequently sentenced Eafford to an eight-month prison term.

But the court of appeals vacated the sentence of possession of cocaine, explaining that the verdict form for Count Two “does not include a statement indicating either the degree of the offense charged or that an aggravating circumstance existed to justify a conviction on the greater offense, specifically that the drug involved was cocaine ...”

The court of appeals then said that without a “statement of the degree of the offense for which he was convicted, or a statement of the aggravating element demonstrating that” Eafford was “convicted of a greater degree of the offense, he stands convicted of only a misdemeanor.”

In response to this decision, the state filed an appeal with us – the Supreme Court of Ohio – and argued that when a verdict form contains a finding of guilty for possession of drugs but omits the name of the specific drug at issue, a sentencing court must look to the totality of the record, including the indictment, the evidence at trial, the argument of the attorneys, and the jury instructions, to determine the level of the offense.

The state also maintained that to convict Eafford “of a misdemeanor would conflict with the charging document, not to mention the entire trial. The indictment, evidence, and jury instructions referred exclusively to cocaine, no other drug.”

In Ohio law, there is a difference between “possession of drugs” and “possession of cocaine.” Eafford argued that the jury found him guilty of possession of drugs and because the verdict didn’t specify either the degree of the offense or a particular quantity of drugs to elevate the offense to a higher degree, he could only be sentenced for a misdemeanor.

Eafford maintained that overriding the jury’s verdict of possession of drugs and sentencing him for possession of cocaine based on the court’s independent review of the record would amount to judicial fact-finding in violation of the Sixth Amendment.

By a five-to-two vote, our court disagreed with Eafford and reversed the court of appeals’ judgment. According to the majority, Count Two of the indictment charged Eafford with possession of cocaine, the state provided testimony that he possessed cocaine, and the jury returned its verdict on the only verdict form the court submitted to it.

That form reflected a finding of guilty as charged in Count Two of the indictment, referring to possession of cocaine.  “Thus,” the majority concluded, “Eafford has not shown that but for the use of this verdict form, the outcome of the trial would have been different.”

Justice Judith Ann Lanzinger and I cast the two dissenting votes. We dissented on the grounds that the reversal of the court of appeals’ judgment was a violation of Eafford’s Sixth Amendment rights. “The United States Supreme Court has clearly held,” Justice Lanzinger wrote, “that a court may not usurp the fact-finding of a jury through judicial findings.”

Our court has also acknowledged that principle. But “by holding that a verdict form can be modified by the indictment, the evidence at trial, the argument of counsel, and the jury instructions, the majority allows a judge to supplant the language of the jury verdict and the jury’s findings. The problem in this case is that the verdict form contains neither the degree of the offense nor the fact that the controlled substance is cocaine.”

In a case from 2007, our court held that, in accordance with Ohio law, 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.”

In this case, the jury found Eafford guilty of violating a law that states, “No person shall knowingly obtain, possess, or use a controlled substance.” But the verdict did not name either the controlled substance involved or the degree of the offense to allow the judge to sentence in accordance with the jury’s finding.

Justice Lanzinger and I concluded that the court of appeals appropriately held that the missing facts could not be supplied by the indictment or cured by the trial court’s instructions. When the trial judge ignored the verdict form reflecting misdemeanor possession of drugs and sentenced Eafford for felony possession of cocaine, the court substituted its own findings for that of the jury.

This situation could have been avoided by the prosecutor’s careful review of the verdict form before it was submitted to the jury. Nevertheless, by a five-to-two majority, our court reversed the judgment of the court of appeals and reinstated the sentence imposed by the trial court.

EDITOR'S NOTE: The case referred to is State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224. Case No. 2011-0599. Decided May 22, 2012. Majority opinion written by Justice Terrence O'Donnell.