[Cite as State v. Lambert,
2019-Ohio-3543.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
PUTNAM COUNTY
STATE OF OHIO,
CASE NO. 12-18-10
PLAINTIFF-APPELLEE,
v.
ERIC D. LAMBERT, OPINION
DEFENDANT-APPELLANT.
Appeal from Putnam County Common Pleas Court
Trial Court No. 2018 CR 011
Judgment Affirmed
Date of Decision: September 3, 2019
APPEARANCES:
Elizabeth H. Smith for Appellant
Katherine G. Porter for Appellee
Case No. 12-18-10
WILLAMOWSKI, J.
{¶1} Defendant-appellant Eric D. Lambert (“Lambert”) appeals the
judgment of the Putnam County Court of Common Pleas, alleging that the trial court
erred by failing to grant his Crim.R. 29 motion in full. For the reasons set forth
below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On January 18, 2018, Lambert was indicted on one count of domestic
violence as a felony of the fourth degree (“felony domestic violence”) in violation
of R.C. 2919.25(A), (D)(3). Doc. 1. Generally, a violation of R.C. 2919.25(A) is a
misdemeanor of the first degree (“misdemeanor domestic violence”). R.C.
2919.25(D)(2). However, “if the offender previously has … been convicted of
domestic violence … a violation of division (A) or (B) of [R.C. 2919.25] is a
felony of the fourth degree ….” R.C. 2919.25(D)(3). Under R.C. 2945.75(B)(1),
[w]henever in any case it is necessary to prove a prior conviction,
a certified copy of the entry of judgment in such prior conviction
together with evidence sufficient to identify the defendant named
in the entry as the offender in the case at bar, is sufficient to prove
such prior conviction.
R.C. 2945.75(B)(1).
{¶3} At trial, on July 10, 2018, the State introduced a certified copy of a
domestic violence conviction for an “Eric Lambert.” Tr. 157-158. After the State
rested, the Defense made a Crim.R. 29 motion. Tr. 163-164. The Defense argued
that the trial court should dismiss the charges against Lambert because the State
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failed to offer evidence that the “Eric Lambert” listed on the certified copy of the
domestic violence conviction was, in fact, the same person as the defendant in this
case. Tr. 163-165. The trial court then denied this motion. Tr. 165.
{¶4} On July 11, 2018, the jury found Lambert to be guilty of one count of
domestic violence in violation of R.C. 2919.25(A), (D)(3). Doc. 55. The Defense
then then renewed his Crim.R. 29 motion after the verdict. Tr. 200. The trial court
denied this motion. Tr. 200. On July 12, 2018, Lambert filed another Crim.R. 29
motion with the trial court. Doc. 59. In this motion, Lambert argued that his
conviction was not supported by sufficient evidence because the State did not
comply with R.C. 2945.75(B)(1) by failing to introduce “evidence sufficient to
identify the defendant named in the entry as the offender in the case at bar.” R.C.
2945.75(B)(1). Doc. 59.
{¶5} On July 25, 2018, the trial court found Lambert’s argument to have
merit and partially granted Lambert’s Crim.R. 29 motion. Doc. 61. The trial court
then determined that the evidence provided at trial by the State established all of the
elements of “the first-degree misdemeanor version of the offense of domestic
violence.” Doc. 61. Thus, the trial court found that Lambert’s conviction would
“stand as to the lesser included [offense of] Domestic Violence,” which was “a
misdemeanor of the first degree.” Doc. 61. Lambert was convicted of domestic
violence as a first degree misdemeanor and sentenced on July 25, 2018. Doc. 64.
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Assignment of Error
{¶6} Appellant filed his notice of appeal on August 31, 2018. Doc. 68. On
appeal, appellant raises the following assignment of error:
The trial court’s partial grant of defendant’s Crim.R. 29 motion
was contrary to law as defendant was entitled to an acquittal due
to the State of Ohio failing to prove every element of the offense
of domestic violence, in violation of R.C. 2919.25(A) & (D)(3), a
felony of the fourth degree, as this was the only charge presented
to the jury for their consideration.
Lambert points to the fact that he did not request—and the jury did not receive—a
jury instruction for the lesser included offense of misdemeanor domestic violence.
For this reason, he argues that the jury faced a choice between finding him guilty or
not guilty of the offense of felony domestic violence. After the jury returned a
verdict of guilty, he asserts that the trial court, when considering his Crim.R. 29
motion, then had a choice between entering a conviction for felony domestic
violence or acquitting him of that charge. Since the trial court determined that the
State did not properly establish the enhancement element of the offense of felony
domestic violence, Lambert claims that the trial court had to fully grant his Crim.R.
29 motion and acquit him of the charge of felony domestic violence.
Legal Standard
{¶7} Crim.R. 29(A) reads, in its relevant part, as follows:
The court on motion of a defendant or on its own motion, after
the evidence on either side is closed, shall order the entry of a
judgment of acquittal of one or more offenses charged in the
indictment, information, or complaint, if the evidence is
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insufficient to sustain a conviction of such offense or offenses. The
court may not reserve ruling on a motion for judgment of
acquittal made at the close of the state’s case.
Crim.R. 29(A). “An appellate court reviews a denial of a Crim.R. 29 motion for
judgment of acquittal using the same standard that is used to review a sufficiency of
the evidence claim.” State v. Sullivan, 3d Dist. Hancock No. 5-17-09, 2017-Ohio-
8937, ¶ 11, quoting State v. Carter, 72 Ohio St.3d 545, 553,
651 N.E.2d 965 (1995).
{¶8} A challenge to the sufficiency of the evidence supporting a conviction
“is a question of law and a ‘test of adequacy rather than credibility or weight of the
evidence.’” State v. Beaver, 3d Dist. Marion No. 9-17-37, 2018-Ohio-2438, ¶ 40,
quoting State v. Berry, 3d Dist. Defiance No. 4-12-03,
2013-Ohio-2380, ¶ 19. The
applicable standard
is whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that
the essential elements of the crime were proven beyond a
reasonable doubt.
State v. Brown, 3d Dist. Hancock No. 5-17-19, 2018-Ohio-899, ¶ 8, quoting State
v. Plott,
2017-Ohio-38,
80 N.E.3d 1108, ¶ 73 (3d Dist.).
{¶9} R.C. 2919.25(A) defines the crime of domestic violence and reads as
follows: “No person shall knowingly cause or attempt to cause physical harm to a
family or household member.” R.C. 2919.25(A).
A violation of R.C. 2919.25(A) is generally a first-degree
misdemeanor; however, if the defendant ‘previously has pleaded
guilty to or been convicted of domestic violence,’ it is a felony of
the fourth degree. See R.C. 2919.25(D)(2) and (D)(3). Because a
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prior domestic-violence conviction raises the degree of a
subsequent offense, a prior conviction is an essential element of
the offense. State v. Allen, 29 Ohio St.3d 53, 54,
506 N.E.2d 199
(1987) (an element elevates the degree of the offense; an
enhancement provision increases only the penalty).
State v. Bibler, 2014-Ohio-3375,
17 N.E.3d 1154 ¶ 8 (3d Dist.). Thus, a prior
conviction for domestic violence is an essential element for the offense of domestic
violence as a fourth degree felony but is not an essential element for the offense of
domestic violence as a first degree misdemeanor. R.C. 2919.25(A), (D)(3).
Legal Analysis
{¶10} On appeal, Lambert points to the fact that the State, in failing to
properly establish that he had a prior domestic violence conviction, did not prove
an essential element of the crime with which he was charged: felony domestic
violence. On this basis, Lambert then argues that the trial court should not have
convicted him of any crime because the State failed to prove this essential element.
On appeal, neither party disputes that the State failed to introduce evidence that
properly established that Lambert had a prior conviction. See State v. Harrington,
3d Dist. Logan No. 8-01-20, 2002-Ohio-2190, ¶13, citing State v. Newton, 3d Dist.
Auglaize No. 2-83-20,
1984 WL 8033, *4 (June 19, 1984).
{¶11} The prior conviction element must be established in order to elevate
the degree of the offense of domestic violence from a misdemeanor to a felony.
R.C. 2919.25(A), (D)(3). However, this prior conviction element is not necessary
to establish that Lambert committed the crime of domestic violence. State v.
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Lunguy, 3d Dist. Allen No. 1-08-02, 2008-Ohio-2922, ¶ 24 (holding that “[t]he fact
that the State failed to prove [the element enhancing the crime to a higher-degree
offense] does not … mean that no crime was committed; rather, it simply means
that the offense is lower in degree ….”). Thus, the fact that the State did not
properly establish that Lambert had a prior conviction does not mean that the State
failed prove that Lambert committed the crime of misdemeanor domestic violence,
which, in this case, was implicitly charged in the indictment as a lesser included
offense of the felony domestic violence.
Id. Rather, this means that the State failed
to prove that Lambert should have been convicted of a fourth degree felony instead
of a first degree misdemeanor for the commission of the crime of domestic violence.
Id.
{¶12} In jury trials, the jurors return a verdict on a charge for which the
defendant has been tried. The trial court then has the authority to enter a conviction
for the charges of which the jurors found the defendant guilty. In this case, the jury
returned a verdict that found Lambert was guilty of the offense of domestic violence.
However, Lambert, in his Crim.R. 29 motion, asserted that the State did not present
sufficient evidence to support a conviction for felony domestic violence. By
partially granting his Crim.R. 29 motion, as to the offense of felony domestic
violence, the trial court merely cleared the way to then enter its judgment of
conviction, as it would do after any criminal jury verdict, upon the remaining jury
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verdict of guilty of misdemeanor domestic violence, as a trial court would do after
any criminal jury verdict.
{¶13} Ohio case law indicates that this is the proper course of action in
situations where the State fails to substantiate an element that serves to elevate the
degree of an offense. See State v. Gwen, 143 Ohio St.3d 284,
2012-Ohio-5046,
982
N.E.2d 626, ¶ 8, 24; State v. Dumas, 1st Dist. Hamilton Nos. C-810834, C-810877,
1982 WL 4747, fn. 1 (Oct. 6, 1982); State v. Pusey, 3d Dist. Shelby No. 17-90-1,
1991 WL 128233, * 4-5 (July 11, 1991); State v. Thornton, 8th Dist. Cuyahoga No.
65139,
1993 WL 453675, *2-3 (Nov. 4, 1993); State v. McCoy,
89 Ohio App.3d
479, 484,
624 N.E.2d 1102, 1105 (10th Dist. 1993); State v. Abdou, 10th Dist.
Franklin No. 97APA01-73,
1997 WL 661914, *2-3 (Oct. 23, 1997).
{¶14} Further, while a prior conviction is an essential element for the crime
of felony domestic violence, it is not an essential element of the crime with which
Lambert was convicted: misdemeanor domestic violence. Doc. 64. Since Lambert
does not argue on appeal that the State failed to prove any of the essential elements
of the offense of misdemeanor domestic violence, Lambert’s arguments ultimately
do not challenge the sufficiency of the evidence supporting the conviction that he
has. Thus, he has not demonstrated on appeal that the conviction he has for
misdemeanor domestic violence is unsupported by sufficient evidence.
{¶15} The arguments that Lambert has raised on appeal do not establish that
the trial court erred by partially granting his Crim.R. 29 motion. The jurors returned
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a verdict of guilty that found Lambert guilty of all of the elements of the offense of
misdemeanor domestic violence. The trial court entered a conviction that reflected
the jury’s finding of guilt and the evidence presented at trial. For these reasons,
Lambert’s sole assignment of error is overruled.
Conclusion
{¶16} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Putnam County Court of Common Pleas
is affirmed.
Judgment Affirmed
ZIMMERMAN, P.J. and SHAW, J., concur.
/hls
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