[Cite as State v. Sheppard, 2012-Ohio-5783.]
IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellant : C.A. CASE NO. 2012 CA 41
v. : T.C. NO. 12CR149
CHELSSIE E. SHEPPARD : (Criminal appeal from
Common Pleas Court)
Defendant-Appellee :
:
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OPINION
Rendered on the 7th day of December , 2012.
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AMY M. SMITH, Atty. Reg. No. 0081712, Assistant Clark County Prosecutor, 50 E.
Columbia Street, 4th Floor, Springfield, Ohio 45502
Attorney for Plaintiff-Appellant
JAMES D. MARSHALL, Atty. Reg. No. 0012648, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45502
Attorney for Defendant-Appellee
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DONOVAN, J.
{¶ 1} Plaintiff-appellant the State of Ohio appeals a decision of the Clark County
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Court of Common Pleas granting a pre-trial motion in limine filed by defendant-appellee
Chelssie Elizabeth Sheppard. The State filed a timely notice of appeal on June 5, 2012.
{¶ 2} The instant appeal stems from an incident which occurred on June 30, 2011,
in which the complainant, Kelly Miller, observed Sheppard repeatedly circling the block
where Miller’s residence was located. The record establishes that on that date, Miller had
an active protection order against Sheppard in Case No. 2010CVSDV04 which had been
issued in Champaign County and served on Sheppard on February 9, 2010.
{¶ 3} Sheppard was subsequently indicted on March 5, 2012, for violation of a
protection order, in violation of R.C. 2919.27(A)(1), a felony of the fifth degree. At her
arraignment on March 12, 2012, Sheppard pled not guilty, and the trial court released her
on her own recognizance. On May 17, 2012, Sheppard filed a pre-trial motion in limine.
In her motion, Sheppard asked the trial court to prohibit the State from using a prior
conviction set forth in the indictment. Sheppard argued that because the prior conviction
was based on a no contest plea, the State should not be permitted to introduce it in order to
raise the level of the offense to a felony of the fifth degree from a first degree misdemeanor.
A hearing was held on said motion on May 29, 2012. The trial court granted Sheppard’s
motion at the close of the hearing. The trial court’s decision was journalized in an entry
filed on May 31, 2012.
{¶ 4} It is from this judgment that the State now appeals.
{¶ 5} The State’s sole assignment of error is as follows:
{¶ 6} “THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION
IN LIMINE TO PROHIBIT THE STATE FROM USING A PRIOR CONVICTION BASED
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ON A NO CONTEST PLEA AGAINST SHEPPARD IN A SUBSEQUENT CRIMINAL
PROCEEDING.”
{¶ 7} In its sole assignment, the State contends that the trial court erred when it
granted Sheppard’s motion in limine which prohibited the State from using a prior
conviction at trial which was based on a no contest plea and which raised the level of
Sheppard’s current offense from a first degree misdemeanor to a fifth degree felony.
{¶ 8} Crim. R. 11(B)(2) states that “[t]he plea of no contest is not an admission of
defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment,
information, or complaint, and the plea or admission shall not be used against the defendant
in any subsequent civil or criminal proceeding.” This principle is echoed in Evid. R.
410(A)(2) which states that a plea of contest “is not admissible in any civil or criminal
proceeding against the defendant who made the plea.” Id.
{¶ 9} “The purpose behind the inadmissibility of no contest pleas in subsequent
proceedings is to encourage plea bargaining as a means of resolving criminal cases by
removing any civil consequences of the plea. State v. Mapes, 19 Ohio St.3d 108, 111, 484
N.E.2d 140 (1985). The rule also protects the traditional characteristic of the no contest
plea, which is to avoid the admission of guilt. Id. The prohibition against admitting
evidence of no contest pleas was intended generally to apply to a civil suit by the victim of
the crime against the defendant for injuries resulting from the criminal acts underlying the
plea. Allstate Ins. Co. v. Simansky, 45 Conn. Supp. 623, 628, 738 A.2d 231 (1998).”
Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125 Ohio St.3d 362,
2010-Ohio-1043, 928 N.E.2d 685, at ¶ 14.
[Cite as State v. Sheppard, 2012-Ohio-5783.]
{¶ 10} Although Evid. R. 410 explicitly states that a no contest plea is not
admissible in any subsequent civil or criminal proceeding, the State argues that there is an
exception to this rule in a criminal proceeding that was announced by the Supreme Court of
Ohio in State v. Mapes, 19 Ohio St.3d 108, 484 N.E.2d 140 (1985). In Mapes, the
defendant, on trial for a murder committed in Ohio, pled non vult, the equivalent of of a no
contest plea, to a murder in New Jersey. In the Ohio proceeding, the trial court permitted
police officers from New Jersey to testify that the defendant had been convicted of murder in
that state. Id. The evidence was introduced to establish a death specification pursuant to
R.C. 2929.04(A)(5). Significantly, the Supreme Court of Ohio stated:
Crim. R. 11(B)(2) and Evid. R. 410 prohibit only the
admission of a no contest plea. These rules do not prohibit
the admission of a conviction entered upon that plea when
such conviction is made relevant by statute. The trial court
was correct in admitting the evidence of the prior conviction
as it was not equivalent to the admission of the no contest plea
and it was not introduced by the prosecution for any purpose
other than establishing the specification. The purpose of
Evid. R. 410 as it relates to criminal trials is to encourage and
protect certain statements made in connection with plea
bargaining and to protect the traditional characteristic of the no
contest plea which is avoiding the admission of guilt that is
inherent in pleas of guilty. These purposes are not disserved
by the admission of a conviction entered upon a no contest
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plea. Id.
{¶ 11} It is undisputed that prior to the commission of the offense in the instant
case, Sheppard pled no contest to the charge of violation of a protection order and was found
guilty in a separate case. R.C. 2919.27(A)(1) states that “[n]o person shall recklessly
violate the terms of *** [a] protection order issued or consent agreement approved pursuant
to section 2919.26 or 3113.31 of the Revised Code.” Violation of a protection order
constitutes a misdemeanor of the first degree unless the offender has previously been
convicted of, pleaded guilty to, or been adjudicated a delinquent child for violation of a
protection order. R.C. 2919.27(B)(2) and (3). If there was a previous conviction for
violation of a protection order, the offense becomes punishable as a felony of the fifth
degree. R.C. 2919.27(B)(3). Pursuant to the exception announced in Mapes, the State
argues that Sheppard’s prior conviction for violation of a protection order is made relevant
under the statute in R.C. 2919.27(B)(3), and is therefore admissible to raise the level of the
offense in the instant case.
{¶ 12} Sheppard, however, essentially relies on another Supreme Court of Ohio
case, Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125 Ohio St.3d 362,
2010-Ohio-1043, 928 N.E.2d 685, for the proposition that her no contest plea in her prior
case renders her conviction inadmissible in the instant case. In Elevators, one of the owners
of a business that was damaged by a fire pled no contest to arson and insurance fraud and
was convicted. Id. The insurer brought an action seeking a declaration of no coverage and
recovery of $30,000.00 which had been advanced on the owner’s claim. Id. The trial court
refused to allow the insurer to use the owner’s plea of no contest against him on the basis
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that doing so would contradict the goal of Evid. R. 410. The trial court, however, held that
the convictions based on the no contest plea were admissible to prove that the owner had
intentionally set the fire.
{¶ 13} The Sixth District Court of Appeals reversed the judgment of the trial court,
rejecting the trial court’s distinction between a no contest plea and a conviction based on that
plea. The appellate court also held that the limited exception announced in Mapes did not
apply, and the defendant’s conviction based on the no contest plea was, therefore,
inadmissible. The Supreme Court of Ohio affirmed the decision of the Sixth District,
finding that “[a]pplication of [the exception in] Mapes has been limited to cases where the
fact of the conviction itself is made relevant by a statute or rule.” Elevators, 125 Ohio
St.3d 362, at ¶ 18. The Court went on to state that “the justification underlying the Mapes
exception does not extend to contract situations.” Id. Thus, the Court did not overrule
Mapes. Rather, the Court simply stated that the Mapes exception did not apply in “contract
situations.”
{¶ 14} Sheppard also relies on State v. Hubbs, 7th Dist. Columbiana No. 09 CO 24,
2010-Ohio-4849, to support her argument that her no contest plea is inadmissible. Hubbs
involved the use of a prior conviction for misdemeanor failure to control in a felony DUI
trial. Both charges arose out of the same incident, but were adjudicated separately. Id. The
misdemeanor conviction occurred prior to the felony proceeding. The prosecution sought
admission of the prior conviction in order to prove that the defendant was operating his
vehicle at the time of the DUI offense. Id. at ¶ 4. Relying on the holding in Elevators, the
Seventh District Court of Appeals held that the misdemeanor conviction which arose from
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the defendant’s no contest plea was inadmissible in the proceedings for the felony DUI
offense. Id. at ¶ 25. The appellate court found that “the focus in the rules and in Elevators
is that the no contest plea and conviction resulting from that plea cannot be used in any
action.” Unlike the instant case, however, the defendant’s prior conviction in Hubbs for
failure to control was not “made relevant” by the DUI statute insofar as the prior conviction
did not enhance or otherwise affect the DUI offense. Accordingly, the Mapes exception did
not apply to facts as presented in Hubbs, and the case is clearly distinguishable on that basis.
{¶ 15} Upon review, we find that the Mapes exception applies in the instant case,
and Sheppard’s prior conviction for violation of a protection order based on a no contest plea
was admissible in the instant case. Sheppard’s prior conviction was “made relevant” by
R.C. 2919.27(B)(2) and (3) which state that violating a protection order is a misdemeanor of
the first degree unless the offender has previously been convicted of violation of a protection
order, which raises the level of the offense to a fifth degree felony. The Supreme Court of
Ohio’s holding in Elevators is clearly distinguishable from the facts in the instant case.
Thus, the trial court erred when it granted Sheppard’s motion in limine which prohibited the
State from admitting the prior conviction for violation of a protection order at trial to
enhance the level of the current offense.
{¶ 16} The State’s of Ohio’s sole assignment of error is sustained.
{¶ 17} The State’s sole assignment of error having been sustained, the order of the
trial court is reversed, and this matter is remanded for proceedings consistent with this
opinion.
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[Cite as State v. Sheppard, 2012-Ohio-5783.]
FAIN, J. and FROELICH, J., concur.
Copies mailed to:
Amy M. Smith
James D. Marshall
Hon. Richard J. O’Neill