[Cite as State v. Overton, 2017-Ohio-8389.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Earle E. Wise, Jr., J.
-vs- :
:
JONAS L. OVERTON : Case No. 2016CA00224
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 2016CR0894
JUDGMENT: Vacated and Remanded
DATE OF JUDGMENT: October 30, 2017
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO BRADLEY R. IAMS
Prosecuting Attorney SAMUEL J. FERRUCCIO, JR.
By: KATHLEEN O. TATARSKY JEFFRY V. SERRA
Assistant Prosecuting Attorney 301 Cleveland Avenue NW
110 Central Plaza South, Suite 510 Canton, OH 44702
Canton, OH 44702-1413
Stark County, Case No. 2016CA00224 2
Wise, Earle, J.
{¶ 1} Defendant-Appellant, Jonas L. Overton, appeals his December 6, 2016
convictions and sentence in the Court of Common Pleas of Stark County, Ohio.
Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} Appellant was under surveillance by the FBI Safe Streets Task Force
which focuses on narcotics investigations. For several weeks, appellant was observed
coming and going from an apartment in Canton, Ohio. On May 9, 2016, Jackson
Township police officers and the FBI task force executed a search warrant on the
apartment. No one was inside the apartment at the time. During the search, police
discovered drugs, a loaded firearm, a magazine for the firearm, and a receipt with
appellant's name on it. Later, appellant was stopped and a key to the apartment was
found in appellant's possession.
{¶ 3} On May 17, 2016, the Stark County Grand Jury indicted appellant on two
counts of possession of drugs (cocaine and heroin) in violation of R.C. 2925.11 and one
count of having weapons under disability in violation of R.C. 2923.13. The weapons
charge stemmed from a 2005 conviction for trafficking in cocaine.
{¶ 4} During a pretrial held on October 20, 2016, defense counsel made an oral
motion to stipulate to appellant's 2005 conviction and exclude the presentation of any
evidence on the prior conviction. The trial court denied the stipulation and motion,
finding because the prior conviction was an element of the weapons offense, the state
would be permitted to prove the element. The trial court agreed to give the jury a
limiting instruction on the use of the prior conviction.
Stark County, Case No. 2016CA00224 3
{¶ 5} On October 24, 2016, appellant filed a formal offer to stipulate to being
under disability and a motion in limine to exclude evidence of the prior conviction for
purposes of the weapons charge.
{¶ 6} A jury trial commenced on October 31, 2016. Prior to selecting the jury,
the trial court again denied the stipulation and motion and reiterated its decision to
permit the state to present evidence of appellant's prior conviction. During trial, the
state admitted into evidence a copy of appellant's 2005 conviction, along with a copy of
the four-count, seven-page indictment which included several offenses appellant was
never convicted of. The jury found appellant guilty as charged. By judgment entry filed
December 6, 2016, the trial court sentenced appellant to an aggregate term of six years
in prison.
{¶ 7} Appellant filed an appeal and this matter is now before this court for
consideration. Assignments of error are as follows:
I
{¶ 8} "THE TRIAL COURT ERRED IN REFUSING TO ACCEPT MR.
OVERTON'S OFFER TO STIPULATE TO BEING UNDER DISABILITY AND INSTEAD
ADMITTING EVIDENCE OF HIS PREVIOUS CONVICTION AND INDICTMENT, THE
PROBATIVE VALUE OF WHICH WAS SUBSTANTIALLY OUTWEIGHED BY THE
DANGER OF UNFAIR PREJUDICE."
II
{¶ 9} "MR. OVERTON WAS DENIED EFFECTIVE ASSISTANCE OF
COUNSEL IF HIS OBJECTION TO HIS 1995 (SIC) CONVICTION AND INDICTMENT
WAS NOT PROPERLY MADE."
Stark County, Case No. 2016CA00224 4
III
{¶ 10} "THE JURY'S VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT
OF THE EVIDENCE BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF
CONSTRUCTIVE POSSESSION OF THE DRUGS OR GUN."
I
{¶ 11} In his first assignment of error, appellant claims the trial court erred in
denying his offer to stipulate to being under disability and instead admitted evidence of
his prior conviction and indictment. We agree.
{¶ 12} Appellant was convicted of having weapons under disability in violation of
R.C. 2923.13(A)(3) which states the following:
(A) Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any
firearm or dangerous ordnance, if any of the following apply:
(3) The person is under indictment for or has been convicted of any
felony offense involving the illegal possession, use, sale, administration,
distribution, or trafficking in any drug of abuse or has been adjudicated a
delinquent child for the commission of an offense that, if committed by an
adult, would have been a felony offense involving the illegal possession,
use, sale, administration, distribution, or trafficking in any drug of abuse.
{¶ 13} On October 24, 2016, appellant filed an offer to stipulate "that on May 9,
2016, defendant was a person 'under disability' for purposes of Ohio Revised Code §
Stark County, Case No. 2016CA00224 5
2923.13." On same date, appellant filed a motion in limine to exclude evidence of his
2005 conviction for trafficking in cocaine. On the morning of trial, the trial court denied
the stipulation and motion as follows (T. at 9):
As I had indicated previously, it's the Court's position that the State
is not required to be prevented, necessarily, from admitting the prior
conviction in the form of a judgment entry. I understand that it's the
Defense's position that you have agreed to stipulate to the prior conviction,
but it is - - it remains the Court's position that that decision, as it is an
element of the offense, that the State is permitted to prove that element.
{¶ 14} The trial court stated it would provide to the jury a limiting instruction on
the use of the prior conviction. T. at 10, 13.
{¶ 15} At the conclusion of the evidence, the following exchange occurred
between counsel and the trial court (T. at 375-376):
MS. STARRETT [PROSECUTOR]: Okay. State's Exhibit 1 will be -
THE COURT: I have not seen 1, so I just need to see 1. That's the
only one - -
MS. STARRETT: That would be the prior conviction that defense
has stipulated to the authenticity of.
THE COURT: Have you all seen the copy that is being submitted?
MR. COCOVES [DEFENSE COUNSEL]: Yes.
Stark County, Case No. 2016CA00224 6
THE COURT: And no objection?
MR. COCOVES: No.
THE COURT: Okay.
***
THE COURT: All right. Let me hold on. 1 will be admitted.
{¶ 16} State's Exhibit 1 not only included the judgment entry of appellant's 2005
prior conviction, but also the four-count seven-page indictment "which included several
charges for which he was never convicted – including the destruction of evidence,
corrupt activity, and having a gun." Appellant's Brief at 10.
{¶ 17} We note the admission or exclusion of evidence lies in the trial court's
sound discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d
528; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In order to find an
abuse of that discretion, we must determine the trial court's decision was unreasonable,
arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.
Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 18} Evid.R. 403(A) states: "Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury."
{¶ 19} Appellant argues the admission of the judgment entry of his prior
conviction and the four-count seven-page indictment constitutes unfair prejudice. In
support of his arguments, appellant cites the recent Supreme Court of Ohio's decision in
Stark County, Case No. 2016CA00224 7
State v. Creech, ___ Ohio St.3d ___, 2016-Ohio-8440, ___ N.E.3d ___. The Creech
court at ¶ 36 explained "undue prejudice" as follows:
" 'Unfair prejudice is that quality of evidence which might result in
an improper basis for a jury decision. Consequently, if the evidence
arouses the jury's emotional sympathies, evokes a sense of horror, or
appeals to an instinct to punish, the evidence may be unfairly prejudicial.' "
Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890
(2001), quoting Weissenberger, Ohio Evidence, Section 403.3, at 85–87
(2000).
{¶ 20} The Creech decision was filed on December 29, 2016. We note the trial
court did not have the benefit of the decision for the October 31, 2016 trial, although it
was aware of the appellate decision out of the Seventh District. However, because "[a]
new judicial ruling may be applied only to cases that are pending on the announcement
date" and appellant's appeal was pending on December 29, 2016, we find the Creech
decision to be applicable to this case. State v. Evans, 32 Ohio St.2d 185, 186, 291
N.E.2d 466 (1972).
{¶ 21} In Creech, the defendant was charged with three weapons charges for
three different disabilities. The defendant offered to stipulate to any one of the three
disabilities since only one weapon and one event was involved. The trial court denied
the offer of stipulation, finding the state was not required to elect a disability or even
accept a stipulation. Evidence of all three disabilities was presented to the jury via
Stark County, Case No. 2016CA00224 8
testimony and exhibits, and was mentioned during opening statement and closing
argument. The trial court gave the jury a limiting instruction. The jury found appellant
guilty of all three weapons counts and appellant appealed. On appeal, our brethren
from the Seventh District in State v. Creech, 7th Dist. Jefferson No. 13 JE 41, 2014-
Ohio-4004, 18 N.E.3d 523, reversed the convictions, adopting the reasoning used by
the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct.
644, 136 L.Ed.2d 574 (1977). The Supreme Court of Ohio affirmed the decision, also
relying heavily on Old Chief.
{¶ 22} Old Chief involved nearly identical issues as in Creech and the case sub
judice. In Old Chief, the defendant was charged with various charges involving a
firearm, including assault with a dangerous weapon, as well as a violation of 18 U.S.C.
922(g)(1) (the federal version of Ohio's R.C. 2923.13) which prohibits possession of a
firearm by anyone "who has been convicted in any court of, a crime punishable by
imprisonment for a term exceeding one year." The defendant offered to stipulate to the
fact that he previously had been convicted of a crime punishable by imprisonment
exceeding one year. He argued by so stipulating, evidence of the name and nature of
the offense would be inadmissible under Fed.R.Evid. 403 because the probative value
of that evidence would be substantially outweighed by the danger of unfair prejudice.
The trial court disagreed and permitted the government to present evidence of the
defendant's prior conviction. The jury was made aware that the defendant had been
convicted of a prior assault resulting in serious bodily injury to the victim, and found the
defendant guilty as charged.
Stark County, Case No. 2016CA00224 9
{¶ 23} After discussing unfair prejudice, propensity evidence, balancing the
evidence, and the government's right to present its case, the United States Supreme
Court held the following at 191:
Given these peculiarities of the element of felony-convict status and
of admissions and the like when used to prove it, there is no cognizable
difference between the evidentiary significance of an admission and of the
legitimately probative component of the official record the prosecution
would prefer to place in evidence. For purposes of the Rule 403 weighing
of the probative against the prejudicial, the functions of the competing
evidence are distinguishable only by the risk inherent in the one and
wholly absent from the other. In this case, as in any other in which the
prior conviction is for an offense likely to support conviction on some
improper ground, the only reasonable conclusion was that the risk of
unfair prejudice did substantially outweigh the discounted probative value
of the record of conviction, and it was an abuse of discretion to admit the
record when an admission was available.
{¶ 24} The Creech court painstakingly combed through the Old Chief decision,
adopted its reasoning in Ohio, and concluded the following at ¶ 40:
Pursuant to Evid.R. 403, in a case alleging a violation of R.C.
2923.13, when the name or nature of a prior conviction or indictment
Stark County, Case No. 2016CA00224 10
raises the risk of a jury verdict influenced by improper considerations, a
trial court abuses its discretion when it refuses a defendant's offer to
stipulate to the fact of the prior conviction or indictment and instead admits
into evidence the full record of the prior judgment or indictment when the
sole purpose of the evidence is to prove the element of the defendant's
prior conviction or indictment.
{¶ 25} The Creech court at ¶ 39 also determined the limiting instruction "was
insufficient to overcome the admission of inadmissible evidence of Creech's prior
convictions and indictment. '[I]f there would be danger of unfair prejudice, evidence
ordinarily admissible for a limited purpose should not be admitted even with a limiting
instruction.' 1980 Staff Notes, Evid.R. 105."
{¶ 26} In the case sub judice, the sole purpose of admitting the evidence (State's
Exhibit 1) was to prove the element of appellant's prior conviction and indictment, as the
prosecutor agreed not to bring up appellant's prior conviction during the trial other than
stipulating to the authenticity of the exhibit. T. at 10-11. In this case wherein appellant
was charged with the weapons count and two counts of possession of drugs, the jury
was presented with a judgment entry showing appellant's 2005 conviction for two counts
of trafficking in cocaine and a four-count seven-page indictment containing specific
allegations of drug offenses, corrupt activity, and having a firearm, not all of which
appellant was convicted of. Not only was the jury informed of the fact that appellant had
a prior conviction for trafficking in drugs, the jury was informed he was convicted of two
counts and the drug involved was cocaine.
Stark County, Case No. 2016CA00224 11
{¶ 27} In Creech, the defendant was not charged with any drug offenses,
however two of the three weapons offenses included disabilities involving drugs. The
Creech court reasoned the following at ¶ 37:
Likewise, setting out Creech's felony drug offenses with
specificity—that he had been convicted of possessing crack cocaine and
had been charged with two counts of trafficking in cocaine (including one
count of trafficking near a school)—also was potentially prejudicial, in that
it put before the jury the name and nature of the drug offenses rather than
the generalized description of the disability as set forth in the statute.
Especially damaging is the indictment submitted to the jury, which alleges
that Creech trafficked cocaine and that he had engaged in that felonious
activity in the recent past—on one occasion, near a school. (Emphasis
added.)
{¶ 28} As in Creech, the indictment submitted to the jury in this case was
especially damaging. Given the analysis and holding of Creech, we find "the name or
nature of a prior conviction or indictment raises the risk of a jury verdict influenced by
improper considerations" in this case, and therefore find the trial court abused its
discretion in denying appellant's offer to stipulate to being under disability and instead
admitted evidence of his prior conviction and multi-page indictment.1
1Appellee argues because defense counsel did not specifically object to the admission
of the judgment entry and indictment of his 2005 conviction and in fact stipulated to their
authenticity, appellant must show plain error under Crim.R. 52(B). Even under a plain
Stark County, Case No. 2016CA00224 12
{¶ 29} In adopting the reasoning of Old Chief, the Creech court acknowledged
"the differences between R.C. 2923.13(A) and 18 U.S.C. 922(g)(1) in applying the
holding to the Ohio statute." Creech at ¶ 35. The Creech court went on to reason the
following:
What mattered for purposes of the federal statute is that the
defendant had been sentenced to a crime punishable with a sentence of
more than a year in prison. The General Assembly in R.C. 2923.13 made
some distinctions in determining the classes of crimes that should bar a
convict from possessing a gun, but the classes are still broad. What
matters to the General Assembly—and an element that the state must
prove—is that the crime the defendant was convicted of was either a
"felony offense of violence" or a "felony offense involving the illegal
possession, use, sale, administration, distribution, or trafficking in any drug
of abuse." R.C. 2923.13(A)(2) and (3). In regard to R.C. 2923.13, a
stipulation or admission concerning the status element would necessarily
include the fact that the defendant was under indictment or had previously
been convicted of a crime falling within those broad categories.
{¶ 30} Upon remand, the trial court should accept appellant's stipulation to be
under the generalized description of the disability under R.C. 2923.13(A)(3), that he
error analysis, we find unfair prejudice to appellant constituting "a manifest miscarriage
of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of
the syllabus.
Stark County, Case No. 2016CA00224 13
"has been convicted of any felony offense involving the illegal possession, use, sale,
administration, distribution, or trafficking in any drug of abuse" if he chooses to so
stipulate. The mere words "under disability" is not sufficient without the added
generalized description of the disability of R.C. 2923.13(A)(3) as set forth in Creech.
{¶ 31} Assignment of Error I is granted. Assignments of Error II and III are moot.
{¶ 32} The convictions and sentence of the Court of Common Pleas of Stark
County, Ohio is hereby vacated, and the matter is remanded to said court for further
proceedings consistent with this opinion.
By Wise, Earle, J.
Gwin, P.J. and
Baldwin, J. concur.
EEW/sg 925