Ohio Criminal Appeals Lawyer Blog

Assault is usually a first degree misdemeanor and the maximum penalty would be 180 days in jail and a 1,000 dollar fine. Assault is sometimes elevated to a fifth degree felony for which the maximum penalty is 12 months in prison and a 2,500 dollar fine. But for a conviction on an enhanced level of assault to hold up, the verdict form has to indicate that the jury found the defendant guilty of a fifth degree felony assault or it needs to state the additional element(s) that elevate it from a first degree misdemeanor. In a Scioto County case, the verdict form only stated we "find the defendant guilty of assault." Well, since assault is an M1 and the jury verdict did not indicate that the jury found the defendant guilty of a F5 or any facts that would make the assault a F5 in this case, the Fourth District Court of Appeals reversed the conviction for the F5 and remanded to the trial court with instructions to enter a conviction for a M1. Read the decision here.