No. 15-92-5. | Ohio Ct. App. | Mar 31, 1993
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *718
Defendant-appellant, Tony Brown, appeals from the judgment entry of conviction of the Van Wert County Court of Common Pleas, which found him guilty of violating R.C.
Appellant was indicted on October 7, 1991, for complicity in trafficking marihuana within one thousand feet of school premises. The indictment was secured after an undercover operation by the Van Wert County Sheriff's Department. Appellant entered a plea of not guilty on October 10, 1991. At his jury trial on January 9, 1992, appellant was found guilty of the charge as stated in the *719 indictment. The trial court sentenced him on February 5, 1992, to a definite term of two years and a mandatory fine of $1000. Appellant timely filed this appeal and asserts three assignments of error.
Appellant argues that there were three statements made during the prosecutor's closing argument that were prejudicial to him and, therefore, he should be granted a new trial. First, the prosecutor referred to the problem of drugs in "our" society; second, the prosecutor referred to a "smokescreen" by appellant and counsel; and third, the prosecutor's indicated that appellant could "return" to prison.
We will address the first and second statements collectively. Initially, we note that no timely objection was made by appellant's trial counsel at the time these statements were made, nor was there any objection made at the conclusion of the prosecutor's closing arguments. Generally, in the absence of an objection, a reviewing court will not consider an alleged error, unless it is plain error. State v. Williams (1974),
Appellant did, however, object to the third statement concerning the possibility that appellant could return to prison if the jury returned a guilty verdict. This objection was sustained by the trial court and a conversation was held at the bench between the judge and both counsel. No record was made of this conversation in the trial transcript. The transcription renews with the prosecutor returning to his argument with no further references of the possibility that appellant could return to prison and no admonishment by the trial judge to the jury to not consider that statement made by the prosecutor. It is also important to note that the jury heard evidence that appellant had been in prison for previous offenses prior to closing arguments. Appellant was questioned when he was testifying by his attorney on direct concerning a previous conviction and by the prosecutor on cross-examination concerning imprisonments resulting from previous convictions. *720
The prosecution and defense are generally permitted a large degree of discretion during the presentation of closing arguments. State v. Stephens (1970),
For the above stated reasons, this assignment of error is overruled.
Appellant presents two arguments in this assignment. First, the prosecution did not provide the name of a witness until the day prior to trial. Second, the prosecution did not present any evidence as to who owned the property on which the alleged school is constructed on the date of the crime.
We will first address the argument concerning supplying the name of Wilkinson the day before trial. On January 8, 1992, the prosecutor filed a "Supplemental Response to Request for Discovery" and therein included Wilkinson's name as an additional witness he would be calling at trial. Crim.R. 16(D) requires that both parties have a continuing duty, subsequent to an original request for discovery, to notify the other party of material or evidence which would have been subject to the original request for discovery.
Herein, there is nothing in the record to indicate that the prosecutor did not promptly notify appellant of his intent to use Wilkinson as a witness. Appellant argues that the one-day notice did not provide him with sufficient time to properly examine this witness. However, appellant did not request a continuance of the trial the day he received the supplemental response, nor did he request a continuance prior to or during trial. Although appellant's attorney stated to the trial judge at the time of Wilkinson's testimony that he was not prepared, he did not request an opportunity to voir dire the witness nor a continuance to prepare for the exam of this witness. Further, appellant does not allege in his brief how the failure to prepare prejudiced his defense. *721
Therefore, we find there was no error in permitting Wilkinson to testify at trial.
Appellant also argues that the prosecutor did not present any evidence that there was a "school" within one thousand feet of the place of the offense. Specifically, he argues that the prosecutor was required to prove the statutory definition of "school" and "school premises," as enunciated in R.C.
We initially note that if appellant wanted these definitions presented to the jury, he should have submitted jury instructions to the trial judge or made an objection during the instructional phase. However, we address this issue, in the absence of an objection, to determine if plain error was present. Crim.R. 52(B). In deciding whether plain error was present, there are several determinations which must be made. First, we must determine whether the trial court was required to give a jury instruction reciting the definitions of "school" and "school premises." This necessarily requires us to determine if "within one thousand feet of the boundaries of any school premises" is an element of the offense. Next, we must determine if there was plain error because it is an element of the offense and no jury instructions were given on this issue.
Appellant was found guilty of violating R.C.
R.C.
"(R) `School premises' means either of the following:
"(1) The parcel of real property on which any school is situated, whether or not any instruction, extracurricular activities, or training provided by the school is being conducted on the premises at the time a criminal offense is committed;
"(2) Any other parcel or real property that is owned or leased by a board of education of a school or the governing body of a school for which the state board of education prescribes minimum standards under section
"School" is defined in R.C.
"(Q) `School' means any school operated by a board of education or any school for which the state board of education prescribes minimum standards under section
The charge in the indictment contained an allegation that the offense was committed within one thousand feet of school premises. Because the charge in the indictment incorporated statutory definitions, namely "school" and "school premises" as defined in R.C.
Therefore, before we can determine whether this was plain error, we must find that "within one thousand feet of the boundaries of any school premises" is an element of the offense of which appellant was found guilty. The statute under which appellant was sentenced, R.C.
"If the drug involved is marihuana, whoever violates this section is guilty of trafficking in marihuana.
"(1) Where the offender has violated division (A)(1) of this section, trafficking in marihuana is a felony of the fourth degree, except that [if the offender commits the offense on school premises, in a school building, or within one thousand feet of the boundaries of any school premises or the offender previously has been convicted of a felony drug abuse offense] trafficking in marihuana is a felony of the third degree."
Thus, under the four circumstances noted in R.C.
When the punishment of the offender is increased by adding an element to the offense, there must be some substantial, credible evidence proving the additional element beyond a reasonable doubt. For example, in cases increasing incarceration for possession of a firearm during the commission of certain offenses it must be proven beyond a reasonable doubt that the firearm was operable to enhance the defendant's punishment.State v. Gaines (1989),
Since the prosecution must prove the existence of school premises, it must necessarily prove that a school is present, as statutorily defined in R.C.
"Where a statute defines terms used therein which are applicable to the subject matter affected by the legislation, such definition controls in the application of the statute."Terteling Bros., Inc. v. Glander (1949),
Thus, the prosecution must have proven that the criminal activity took place within one thousand feet of the parcel of real property on which a school operated by a board of education is operated or for which the state board of education prescribes minimum standards or within one thousand feet of any parcel of real property that was owned or leased by a board of education of a school or the governing body of a school for which the state board of education prescribes minimum standards.
Herein, we conclude that the finding of "within one thousand feet of the boundaries of any school premises" is an essential element of the state's case-in-chief which must be proven beyond a reasonable doubt before an enhanced penalty and elevated degree of felony can be imposed. Therefore, since "within one thousand feet of the boundaries of any school premises" is an essential element and there were no jury instructions given for the definitions of "school" and "school premises," there was error. Burch, supra. However, an error may *724 not require reversal in every case; only if there is plain error must there be a reversal. Id.
Appellee argues in its brief that a reasonable mind "might fairly find" that it proved that the criminal activity occurred within one thousand feet of a school upon a review of Wilkinson's testimony. We disagree. Wilkinson's testimony fails to meet the prosecution's requirement to prove each and every element of the offense beyond a reasonable doubt. The evidence adduced at the trial fails to meet either of the following definitions of school premises as stated in R.C.
Pursuant to R.C.
Although one or any number of the members of the jury in this case may possibly have known that Van Wert High School was a school as defined by R.C.
Pursuant to R.C.
Although the matter of whether the school is operated by a board of education may be deemed trivial, it is not. The purpose of such a statute as R.C.
Thus, as there was no evidence sufficient to satisfy either R.C.
Appellant argues that, contrary to Evid.R. 609(B), the trial court permitted appellee to introduce evidence of three prior convictions more than ten years old. Appellant not only argues that he received late notice of the intent to use these convictions, but also that the probative value of these convictions for impeachment purposes did not substantially outweigh the prejudicial effect of such convictions.
Relevant to this assignment of error, therefore, is the text of Evid.R. 609(B),2 which states:
"Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of *726 the release of the witness from the confinement * * * whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence."
The trial court has broad discretion in determining whether prior convictions will be admitted into testimony, pursuant to Evid.R. 609, and the extent to which such testimony will be used. State v. Wright (1990),
First, in regard to the issue of notice, in October 1991, appellee provided appellant with a discovery packet, containing appellant's prior convictions. No notice of intent to use said prior convictions at trial was presented with this discovery packet. Three days prior to trial, appellee filed a notice of intent to use convictions more than ten years old at trial. The next day, appellant filed a motion for a protective order to prevent the prior convictions from being admitted into evidence at trial. The trial court did not rule upon this issue until after appellee had rested its case. After a discussion between the trial judge and the parties' attorneys, the trial court stated that the probative value outweighed the prejudicial effect and permitted all three prior convictions more than ten years old to be admitted, and a prior conviction within the preceding ten years to be admitted.
Although appellant requested in his motion for a protective order for a continuance of trial if the motion was not granted, subsequent to the trial judge's ruling upon this issue at trial, appellant only requested "a few minutes" with his client, which the trial judge permitted. He did not renew his request for a continuance nor make any further objection concerning the convictions. In the absence of such a request or an objection, we cannot find that the trial court abused its discretion in permitting the notice of intent to use prior convictions more than ten years old.
Second, we do not find that the trial court abused its discretion in determining that the probative value of the prior convictions substantially outweighed the prejudicial effect of such convictions. The three prior convictions, aggravated burglary, grand theft, and receiving stolen property, all involve dishonesty. State v. Tolliver (1986),
Appellant's testimony on direct centered on his defense that he was an innocent bystander and was not involved in any way on January 11, 1991, with a drug exchange. Conversely, the prosecutor's case argued that appellant purposely picked up a friend that day and was directly involved in the drug exchange, as relayed by the drug informant at the time of the exchange. Thus, the trial involved an issue of credibility, whether to believe the state's witnesses or appellant's testimony. Therefore, the trial court properly admitted evidence concerning appellant's credibility, since it was especially relevant and material to the trier of fact.
For the above-stated reasons, this assignment of error is overruled.
Judgment affirmed,sentence vacated and cause remandedfor resentencing.
EVANS, P.J., concurs.
BRYANT, J., concurs separately.
Concurrence Opinion
I concur separately, for I agree with the judgment to be entered but disagree with the reasoning and application of authorities by the majority in its consideration of the first branch of appellant's second assignment of error in reaching that result. While I agree that an essential element of the state's required proof is missing, I disagree with the majority about which element of proof is lacking.
My review of the trial transcript discloses that no evidence of distance was introduced to prove the essential element of the specification concerning the occurrence of the transaction at issue within one thousand feet of a school. The sole pertinent reference to the subject of distance is contained in a question of the prosecutor eliciting the affirmative response of a state's witness that he could "tell us if all of Smitty's Motel is within one thousand feet of the boundaries of that school." Following the overruling of the objection to that question interposed by defense counsel, the matter was pursued no further and the critical question of the fact of distance was neither asked nor answered.
In the absence of evidence that the offense occurred within the proscribed distance from a school, the motion for acquittal on that precise issue should have been granted. This issue was preserved by the specific motion on the record. Thus I believe the issue of how and when the state must prove that a school is a school is unnecessarily decided. *728
In my view, it is not only unnecessary but unwise, based on the record before us, to weigh the evidence adduced at trial and to gratuitously find plain error in order to adopt the restrictive evidentiary views of State v. Gaines (1989),
By adopting this precedent as related in the majority opinion in the case now before us, we disregard the express modification of Gaines by State v. Murphy (1990),
I fear that in straining to require the state to introduce in its case-in-chief specific items of evidence to prove ownership of school realty where the fact that a school is a school is neither disputed nor challenged, we frustrate the purpose we recognize for enhanced penalty, exalting format over probity in order to do so.
When considering the evidence necessary to prove operability of a firearm in violation of R.C.
If it is sufficient circumstantial evidence of the operability of a firearm for a layman to testify only to the manner in which the firearm was displayed by the defendant and the minimal observations of the instrument then made, as inMurphy, I perceive no less sufficiency of testimony from a person who has observed the fact that a school is a school for the purposes of R.C.