The majority's analysis of the issues presented by this case is seriously flawed. Therefore, I dissent and would reverse appellant's conviction and remand this case to the Clermont County Court of Common Pleas for a fair trial.
The majority first states that the trial court properly denied appellant's motion for a separate hearing to determine the existence of his prior domestic violence conviction outside the presence of the jury. R.C. 2941.143 grants an accused the right to litigate the existence of a prior conviction for an offense involving violence in a separate proceeding before the trial judge, leaving only the underlying charge for the jury's consideration. State v. Riggins (1986), 35 Ohio App. 3d 1, 6,519 N.E.2d 397, 403-404; State v. Watters (1985), 27 Ohio App. 3d 186, 27 OBR 224, 500 N.E.2d 312. The rationale for this rule is that the underlying prejudice inherent in the use of a prior conviction is the jury's tendency to convict based on the previous conviction, rather than on the weight of the evidence.State v. Allen (1987), 29 Ohio St. 3d 53, 55, 29 OBR 436, 438,506 N.E.2d 199, 201. The use of a prior conviction as evidence of a crime is also *Page 519 restricted because it undermines the presumption of innocence.Riggins, supra, 35 Ohio App.3d at 6, 519 N.E.2d at 403-404.
In affirming the trial court's decision, the majority effectively abrogates this rule. The majority justifies its position by distinguishing between a prior conviction which elevates the degree of an offense and a prior conviction which merely elevates the severity of the punishment accompanying the underlying offense. See State v. Ireson (1991), 72 Ohio App. 3d 235, 594 N.E.2d 165. This distinction is completely spurious. I am unwilling to permit the admissibility of this type of damaging evidence to hinge on such a question of semantics. Consequently, I believe that the trial court erred in refusing to determine the existence of appellant's prior domestic violence conviction in a separate hearing outside the presence of the jury.
I also strongly disagree with the majority's conclusion that the trial court properly prohibited defense counsel from cross-examining the victim on the issue of her pending child custody dispute with appellant. Evid.R. 611 provides that the scope of cross-examination includes all matters relevant to the case or controversy being litigated as well as all matters relevant to the credibility of the witnesses. The general rule is that the pendency of a civil action brought against the accused by a witness in a criminal case is admissible on cross-examination to show the bias or prejudice of the witness or to prove a motive to falsify or exaggerate her testimony.State v. Ferguson (1983), 5 Ohio St. 3d 160, 166, 5 OBR 380, 386,450 N.E.2d 265, 270.
The record indicates that appellant and the victim were divorced in December 1991. After a two-year custody battle, appellant eventually succeeded in obtaining permanent custody of the couple's six-year-old son, Joshua. The victim subsequently moved back in with appellant in July 1993, some three weeks before the domestic violence complaint in this case was filed. The victim then rekindled the custody dispute by obtaining temporary custody of Joshua pending the outcome of the criminal proceedings against appellant.
It is difficult to imagine a set of facts which would more aptly demonstrate the victim's potential bias or prejudice against appellant or her ulterior motive for vigorously assisting the state in its effort to obtain a criminal conviction in this case. There is simply no way that the probative value this evidence bears on the issue of the victim's credibility is substantially outweighed by the danger of confusing the jury or that the victim's bias or prejudice against appellant was "speculative" as suggested by the majority. Accordingly, I believe the trial court improperly prohibited defense counsel from cross-examining the victim on the issue of her child custody dispute with appellant. Therefore, I dissent. *Page 520