*1 540 Appellee. Ohio, Appellant, Creech, State v.
violating persons of, R.C. under that previously convicted for, prohibited indictment certain felonies from possessing are firearms. Creech sought to limit how much the could learn about the underlying upon offenses which the weapons charges were based. We consider whether by court abused its not allowing discretion Creech to his convictions and and by admitting indictment the full record of his prior offenses. We adopt reasoning Supreme the United in Old States Court v. States, United (1997), 519 U.S. 136 L.Ed.2d hold the trial court did abuse its discretion in this case. AND
FACTUAL PROCEDURAL BACKGROUND 2, 2012, On July Creech was a in a passenger by Trystn vehicle driven Hampton. Creech rode the back seat with Rolland “Buster” Owens and man, another who went name by “J.” The car was being followed vehicle driven Antonio Johnson. Hampton stopped her vehicle in a residential Steubenville, neighborhood in passengers and Creech and the other back-seat exited. At that point, Johnson left his car and fired 17 rounds from assault rifle at Creech the other men. .45-caliber, Owens pulled gun, witness, out his own A took cover.
{¶ Luke, Stephanie Creech, relative Owens and an acquaintance of testified that small, weapon, gun; black she was unsure whether produced Creech also “J,” it, man, walking presumably she Creech and another armed fired but saw however, Owens, firing. which Johnson had been testified toward the area from *2 vehicle, they a Johnson’s gun. police did not have When found Creech a bullet from bullet hole in the windshield recovered .38-caliber observed a inside the car. He until months apprehended fled after incident. Creech
4}{¶ later. the counts—improperly on five counts. Two of Creech was indicted
5}{¶ 2923.16(B) carrying in a in handling a firearm motor vehicle violation R.C. 2923.12(A)(2) (F)(1)—were dismissed a in violation of R.C. weapon concealed Crim.R. motion for at granting acquittal the trial court’s of Creech’s upon evidence. close the state’s on are the focus of this case. Creech was indicted The other three counts
6}{¶ disability under R.C. while under having weapon three counts of separate have, 2923.13, person carry, to illegal “knowingly acquire, makes for which circumstances, is under person when the any including firearm” under certain use of crimes. particular types for or has been convicted of indictment 2923.13(A)(3), stemmed which alleged first count a violation R.C. incident, was under shooting of the Creech from the fact that the time school; a of a trafficking vicinity in the drug for pending aggravated indictment 6, 2012. The on June trafficking for the grand jury indicted Creech 2923.13(A)(2), count, on Creech’s a violation of R.C. was based alleging second violence, dangerous assault with a of a felonious previous conviction crime of R.C. count, violation alleging third another in 2009. The weapon, crack 2923.13(A)(3), possession on Creech’s was based in 2009. cocaine on three disabili- Thus, three brought separate charges—based state a firearm. Creech possessing to one incident of
ties—against Creech related prior convictions regarding of evidence attempted prevent to the admission to one trial, stipulate any to Creech offered morning and indictment. On the charged. Creech’s counsel under which he had been of the three disabilities could evidence present that the reason the state pointed only out be to the disabilities: and indictment would convictions offenses, merge will they if he’s convicted of all three of those Obviously to time, willing stipulate I at that so am sentencing purposes of Ohio ask that State any of those counts and would disability in one two, the other since presenting regard precluded be only event, we dealing weapon are and one rather than present- ing multiple previous convictions the State otherwise * present. willing wouldn’t be able to we are stipulate to [SJince act, disabling choose, I they whichever one State wants to think are to, know, required you permit to elect and us to to that particular fact in evidence. refused to allow the “I proposed stipulation, stating, don’t
9}{¶ required believe the point State elect this time or to accept even therefore, stipulation, going go I’m forward with the indictment with all charges presented.” that were three disabilities were specifically addressed the state’s statement, in trial opening testimony, in exhibits submitted to the jury, and *3 argument. statement, state’s In. its closing opening the state told jury the that Creech had aggravated been under indictment for drug trafficking near school time shooting the of the incident and that he had been convicted in 2009 of a deadly felonious assault with weapon possession and crack cocaine. trial, During felon, a detective testified that Creech was a convicted testified indictment, about his 2009 convictions and his 2012 and verified two exhibits— 6—documenting state’s exhibits 5 and those convictions that and indictment. 6 was certified copy Exhibit June indictment of Creech for two cocaine, 1,000 counts of in trafficking one count that he alleging did so within feet High Steubenville School. a copy judgment Exhibit was of the entry of sentence for the 2009 convictions for of crack possession cocaine and felonious assault. “Findings” portion stated that entry the felonious- assault at, count resulted from the that fact Creech “shot but missed [the two-year victim].” Creech’s for prison sentence the 2009 ap- convictions also in peared entry. In closing stated, argument, prosecution
[Defense I much, counsel] and would not on probably agree but we will agree only question you a gun? is did Stedmund have There is disagreement no that he is a felon. You will convicted have back there in jury room the you documents show in he was convicted of of crack possession cocaine. It will you show he was assault, convicted of felonious assault that felonious he committed with a firearm, and offense, the time he committed this at the time that weapon, already this he was under indictment the month before for near a selling drugs school in the County. You will have all of those documents back you, you those, there with and can look at I and encourage there, please, so; you get sense when back your to do but use common
you what makes sense. and think about about the in its instructions curative instruction jury gave The court 12}
{¶ convictions indictment: prior of Creech’s and permissible use of crimes, wrongs, or received about the commission Evidence was in this acts, with which the defendant other than the offenses It only purpose. for a limited trial. That evidence was received it, received, the character may not consider you conformity that he acted accordance defendant in order to show [sic], crime wrongs If find of other you that character. them, you may committed consider and that the defendant acts true proves that the only deciding whether purpose that evidence alleged at the time of the was under Indictment and/or Indictment. conviction as specified the defendant had a all three counts. The court verdicts on guilty returned merged import allied offenses of similar that the three offenses were found years sentence three them, prison to one 30-month sentencing Creech postrelease control. District the Seventh his convictions sentence appealed Creech *4 that erred raising assignment of error “[t]he of Appeals,
Court
stipulate to Mr. Creech’s indictment
it
not
the State to
require
when
did
¶
523,
LAW AND ANALYSIS defendant, Chief, Chief, In Old Johnny Lynn faced multiple Old charges, federal assault with a including dangerous weapon, using a firearm violence, relation to crime of and violating 18 U.S.C. which 922(g)(1), prohibits of a possession by anyone firearm of a previously punishable convicted crime by imprisonment for a term exceeding year. one Old prior Chiefs conviction that made him susceptible to the 18 922(g)(1) charge U.S.C. was assault causing bodily injury. serious Concerned the name and revealing prior nature of his assault unduly conviction would influence the as it contemplated present his charges, Old to stipulate Chief offered to the fact that he previously had been punishable convicted of a crime imprisonment exceeding year. argued He of a stipulating prior to fact such crime would render the name and nature of the offense inadmissible under Fed.R.Evid. 403, because probative value of that evidence would be out- substantially weighed by danger prejudice. of unfair at 174-175. The government agree refused to a stipulation, arguing right its way. case its own agreed The trial court and allowed the
government
introduce the order
and commitment for Old Chiefs
conviction. That
prior
document stated that Old
knowingly
Chief “did
* * *
unlawfully assault
victim]
resulting
bodily injury,”
[the
serious
for which
Old Chief was
years
sentenced to five
of imprisonment.
Id. at 177. With that
it,
the jury
before
found
guilty
Old Chief
of violating
922(g)(1)
18 U.S.C.
on
guilty
eventually
the other counts.
appealed
He
to the United States
Supreme Court.
The Supreme Court held that the trial
court had
its
abused
discretion
Fed.R.Evid. 403
refusing
accept
stipulation regarding
Old Chiefs
his
Chief,
offense. Old
519 U.S.
117 S.Ct.
Fed.R.Evid. 403 authorizes courts to exclude relevant evidence when substantially value is outweighed by the danger prejudice.” “unfair explained term prejudice,’ defendant, ‘unfair as to a criminal “[t]he speaks the capacity of some concededly relevant evidence to lure the factfinder into *5 declaring guilt ground on a different from proof specific to the offense charged.” Old at 180. Quoting advisory rule, committee’s notes to the the court Chief “ ‘ “[ujnfair added that prejudice” within its tendency context means an undue suggest basis, decision on an improper commonly, though necessarily, not an
545 ” Fed.R.Evid. Id., Advisory Notes on quoting one.’ Committee emotional U.S.C.App. at 860. might one basis that influence improper evidence is Propensity
{¶20}
decision,
taking
into
and
earlier bad act
bad character
“generalizing defendant’s
The
charged.”
did
later bad act now
Id.
the odds
raising
tradition,
that under the common-law
pointed
court
out
law,
prior
trouble with the
may
[a]
state
show
defendant’s
“[t]he
acts,
among
neighbors,
though
ill
his
even
such
specific criminal
or
name
probable
that he is
might
persuasive
propensity
facts
be
logically
rejected
is not
because character is
inquiry
of the crime.
perpetrator
irrelevant;
it
too much with the
contrary,
weigh
on the
is said
general
prejudge
to so
them as
a bad
record
overpersuade
deny
opportunity
against
particular charge.”
him a fair
to defend
States,
469, 475-476,
v. United
335 U.S.
quoting
Id. at
Michelson
(1948).
404(b)(1)
incorporates
common law
evidence and
effect
against
balancing
probative
In
value of certain
by the state.
observed,
assess
tendency,
appropriate
the court
possible prejudicial
way.
partially
Probative value is measured
evidentiary alternatives
same
is,
That
if the
Id. at 185.
scarcity of evidence on the same issue.
the relative
alternative that has
evidentiary
for which
is an
state offers evidence
there
but
less
greater probative
prejudicial,
value
substantially similar
of unfair
danger
be
state’s evidence must
discounted.
probative value
against
this reduced
value.
prejudice
weighed
is then
and nature of Old
of the name
recognized
The court
{¶23}
addressing
him.
against
unfairly prejudicial
could
prior
Chiefs
be
that “there
the court wrote
922(g)(1),
of 18
prior-conviction
element
U.S.C.
nature of the
no
of the name or
can be
that evidence
question
*6
carries a risk of unfair
generally
prejudice
the defendant” and that the risk
“will be substantial whenever the official record
by
offered
the Government would
arresting enough
juror
sequence
be
to lure a
into a
of bad
reasoning.”
character
Old
Chief,
U.S.
117 S.Ct.
admission evidence a risk unfair prejudice. of weigh danger prejudice The court had to of against probative unfair value probative of the evidence. The value of the state’s affected presence evidentiary an beyond alternative. Old Chief offered other evidence the record of conviction that prove prior-offense element; could the defen- stipulate dant’s formal offer to been felony subject convicted of a to a prison year sentence of more than “amounted to offer to admit that the prior-conviction satisfied, is, course, element was defendant’s admission good relevant, evidence.” Id. 186. More than just that admission would be “seemingly conclusive the element.” Id. The court noted that 18 922(g)(1) U.S.C. did not as require specificity felony to what kind of a defendant had to have prohibited committed to be possessing from firearm: statutory which the language prior-conviction requirement
couched shows no congressional concern with the specific name or nature the prior what beyond necessary place it within the broad category felonies, qualifying Old clearly Chief meant admit qualify, by his did “that stipulating the Government has proven one essential of the elements offense.” Thus, Old at 186. in Old there was an evidentiary alternative that Chief Chief would discount the value of evidence that included the name and nature of Old Chiefs offense. But ais stipulation equivalent value to other evidence?
the court recognized government’s position prosecution that “the is entitled to choice, or, its case evidence of its own more that a exactly, criminal may not way or admit out full evidentiary his force the case as the Government chooses to it.” Id. at present 186-187. The court acknowledged that an abstract admission does not have the persuasive power evidence, narrative value of conventional help which can tell “a story colorful descriptive richness.” Id. at 187. And the court stipulations wrote that he or juror’s expectations type with a of evidence square
admissions do suddenly presents in a “If some experience prosecution should trial: she admission, differently, by announcing stipulation in the occurrence series door,’ jurors be like ‘never mind what’s behind the may saying, the effect they are Id. at 188-189. may being kept knowing.” well wonder what *7 the necessity allowing that value and But the court concluded the {¶ 26} case to evidence of an event—a story to tell its does extend prosecution the legal status—that exists outside conviction that defines the defendant’s case at hand: factual scenario the its prosecution persuasion that the burden recognition
This has, however, virtually story tell evidentiary depth to a continuous needs status, point legal when the at issue is defendant’s application no independently of the con- wholly rendered on some dependent against criminal behavior him. charged events of later crete at Id. 190. prove out that choice evidence to defendant’s pointed The court the
{¶ 27} abstraction, that saying either a record “slightly varying is legal status one the admitting a statement occurred a certain time or conviction for some crime offense.” Id. naming particular without the thing same * Further, that plain has made distinctions “Congress because {¶ 28} the qualifying this the fact of purpose; felonies do not count for among generic virtually any the statute.” Id. Since matters under conviction is alone what 991(g)(1), under 18 U.S.C. requirement the prior-conviction could meet by the conviction admitted to know is jury most needs “[t]he should bar a Congress thought of crimes that falls within the class in a may readily be made point this possessing gun, convict from in the instructions.” Old and underscored court’s defendant’s admission 190-191, 117 644, 136 574. L.Ed.2d Chief, 519 U.S. so far what status falls outside the issue of the defendant’s Because offense, a or admission regarding stipulation the current has to
prosecution of conviction: as to the as record prosecution useful that the prosecu- general presumption most obvious reason [T]he is that here application its is so remote may tion choose entirely outside status an element goes of the defendant’s proof doing thinking of what the defendant sequence natural to commit the current status Proving telling exactly why offense. without imposed story that status was leaves no of a gap defendant’s subsequent criminality, stipulation demonstration or admission displaces neither from a chapter sequence continuous of conventional substitution, evidence nor comes across officious confuse offend or provoke reproach.
Id. at 191. The court thus cognizable concluded “there is no difference
between of an evidentiary significance admission and of the legitimately component probative official record the would prosecution prefer place value, probative evidence.” Id. terms of stipulation and the official record are equal. weighing So when the probative against prejudicial, the distin- guishing characteristic between the two types competing evidence is carries risk inherent other does not. equality evidentiary Id. value of Thus, the evidence discounts the value of the official record. *8 case, the court held that in Old in any Chiefs “as in other which the prior conviction for an likely support is offense conviction on improper ground, some the only reasonable conclusion of the risk unfair prejudice did substan- tially outweigh conviction, probative discounted value of the of record and it was an of abuse discretion admit the record when admission was available.” Id. The court stated that this holding would be the rule under general Fed. R.Evid. of proof 403 “when convict is at status issue.” Id. at 192. But should in apply Old Ohio? applies Old federal rule to a
{¶ 31}
Chief
Chief
statute,
federal
However,
so it
not binding
is
on
court.
this
“federal
law
rule,
interpreting
federal
not controlling,
while
is
in
persuasive authority
Stammco,
interpreting
Ohio,
similar Ohio rule.”
L.L.C. v.
Tel.
United
Co. of
¶
231,
“Exclusion mandatory. Although if evidence is admissible probative value is substantially outweighed unfair danger of of prejudice, issues, confusion or of of misleading jury.” There is one difference Ohio rule, between the rule and the federal rule: under Ohio’s version exclusion of evidence is when mandatory substantially value is out- weighed by the danger unfair prejudice, whereas under the federal rule interpreted in Old Chief, discretionary. exclusion was is significant This not a present difference for purposes, noteworthy but is that the Ohio rule is more protective who prejudicial is affected potentially evidence. significant The more here 922(g)(1) difference is between 18 U.S.C. statute, Ohio’s weapons-under-disability R.C. 2923.13. Ohio’s statute reads: (A) disability of law or operation legal relieved Unless have, any or firearm knowingly acquire, carry, no use process, person shall ordnance, any following if dangerous apply: or [*] [*] [*] (2) for or been of any under indictment has convicted person is ** *.
felony offense violence
(3) of any under indictment or has been convicted person sale, use, administration, felony involving illegal possession, distribution, any in *. trafficking drug abuse 2923.13(A). R.C. statute at specific more than federal The Ohio statute is somewhat felony It violence and drug in Old refers to offenses of
issue
Chief.
still,
Chief, it,
in
than
But
the statute
generic
offenses rather
felonies.
like
too,
specific
than
“Offense of
encompasses broad
rather
offenses.
categories
2901.01(A)(9);
lists
35 specific
that statute
over
violence”
defined
R.C.
of any
well as
violation
statutory violations as included under the definition as
ordinance,
law, or federal law.
It
substantially
state
also
equivalent municipal
any
or of
or law of
state
any municipal
includes offenses under
ordinance
involving
harm to
knowingly,
physical
purposely
States “committed
United
Likewise,
regard
felony drug
persons.”
or a
harm to
risk
serious
persons
2923.13(A),
myriad
there are a
R.C.
disabilities under
qualify
offenses
in R.C.
2925.
drug
Chapter
offenses contained
permutations
acknowledge
but
the differences
of Old
adopt
reasoning
We
2923.13(A)
holding to the
922(g)(1)
applying
and 18 U.S.C.
between R.C.
qualifying
fact of the
noted that “the
Chief,
In Old
the court
Ohio statute.
*9
jury
most the
under
and that “[t]he
is
what matters
the statute”
conviction alone
falls within the
by
to
is that
conviction admitted
the
needs
know
a
possessing
from
thought should bar a convict
class of crimes that Congress
What
190-191,
644,
prejudice
prejudice
that quality
might
‘Unfair
is
of evidence which
improper
result in an
for a jury
Consequently,
basis
decision.
if the evidence
jury’s
sympathies,
horror,
arouses the
emotional
evokes a
appeals
sense
”
punish,
instinct to
the evidence
be
may
unfairly prejudicial.’
v.
Oberlin
Ctr.,
169, 172,
(2001),
Akron Gen. Med.
91 Ohio St.3d
quoting
that he had been convicted crack possessing cocaine had been trafficking two counts of in cocaine (including trafficking one count near a school)—also prejudicial, potentially in put before name drug nature of the offenses generalized rather than the description disability set in forth Especially damaging statute. indictment the jury, alleges submitted to which that Creech trafficked cocaine and engaged activity felonious in the recent past—on one occasion near a school. fact that Creech’s prior convictions and have indictment could been through
established
stipulation discounts the probative value of the evidence
offered
state. We
agree
Old
that “[g]iven
peculiarities
these
the element of felony-convict status and of admissions and the like
used
when
it,
there
no cognizable difference between the evidentiary significance of
an admission and of the legitimately probative component of the official record
the prosecution
evidence,”
would
prefer
place
Chief,
natural Id. current offense.” commit the substantially of the state’s evidence value discounted case, trial court and thus the unfair this prejudice danger
outweighed limiting instruction that evidence. admitting its discretion abused the character the evidence “to not consider jury—to to the gave or accordance conformity acted in that he in order show the defendant of inadmissible the admission to overcome insufficient that character”—was would be there “[I]f and indictment. convictions prior of Creech’s purpose a limited admissible for ordinarily unfair prejudice, danger Note, 1980 Staff limiting instruction.” even with not be admitted should appeals the court of determination of with the Finally, agree we Evid.R. 105. not harmless. error was that the trial court’s
CONCLUSION 2923.13, of R.C. 403, in a violation alleging a case to Evid.R. Pursuant of a the risk indictment raises conviction or prior or nature of when the name considerations, court abuses a trial by improper influenced verdict prior fact of the to the offer to it refuses a defendant’s when discretion of the full record into evidence the instead admits indictment and conviction or to prove evidence is of the purpose when the sole or indictment judgment prior or indictment. defendant’s the element of the as to stipulations remand, accept trial court should Upon {¶ 41} violence or offense of felony convicted of that he has been count either each illegal involving for a of or indicted has been convicted distribution, any drug administration, trafficking use, sale, possession, abuse. appeals. court of affirm the Accordingly, we affirmed.
Judgment JJ., concur. O’Neill, Lanzinger, French, O’Connor, C.J., and accepted. improvidently O’Donnell, J., the cause and would dismiss dissents Kennedy, J., dissents, opinion. with an J., dissenting.
Kennedy, when it denied legal rule court did not deviate The trial disability to the Creech, to stipulate Stedmund appellee, offer of unilateral *11 552 charged having
element of of the three counts of a while weapon under disability purposes on the basis that all three counts would merge for of Therefore, I I sentencing. dissent. would the court reverse of appeals and Creech’s reinstate convictions. weapon The state with one count of a having Creech while
{¶ 44}
2923.13(A)(2)
pursuant
under
to R.C.
and two
disability
having
counts
a
2923.13(A)(3).
under
to
weapon
disability pursuant
day
while
R.C.
On
trial,
“Obviously
defense counsel addressed the trial court:
if
convict-
[Creech is]
offenses,
ed of all
[weapon-under-disability]
they
purposes
three
will
merge
time,
that
I
sentencing
willing
stipulate
any
at
so am
to
to a disability in
one of
those counts and would ask that the
precluded
State of Ohio be
from presenting
added.)
regard
evidence with
to
(Emphasis
the other two
In response,
argued
that
prosecutor
merger properly occurs
sentencing.
time of
She cited prior precedent from the Seventh District Court of Appeals addressing
Hancock,
allied
import.
issue of
offenses of similar
State v.
7th
See
Dist.
¶
09-JE-30,
{¶ 45} “I don’t believe State is to elect at this required point time to even therefore, accept a I’m stipulation, to forward with going go the indictment charges all the presented.” Ultimately, were Creech jury convicted 2923.13(A). all charges three R.C. weapon above-quoted exchange between counsel the court illustrates
{¶ 46}
making
Creech was
offer to
to
disability
unilateral
element of
one count of
having weapon
disability
while under
on
if
the basis that
he were
counts,
convicted on all
they
three
would merge
purposes
sentencing.
At
no time did
to stipulate
disability
Creech offer
to the
element of all three counts.
Creech’s assertion in the trial court
separate
could not impose
sentences if
were
all
convicted of
three weapon-under-disability offenses is
2941.25(A);
correct.
114,
process
properly
review
alleged
errors
to have occurred at trial. 101 Ohio
118,
553
“error”—i.e.,
a legal
was an
“[deviation
‘whether there
determine]
[to
’ ”
¶
{¶
to the
disability.
agreed
stipulate
never
to
having weapon
while under
Creech
disability.
having weapon
three counts of
while under
disability element of all
Therefore,
guilty
seeking
to
the state from
attempting
preclude
Creech was
in the indictment.
two of
counts
weapon-under-disability
verdicts on
the
plea
reaching
agreements
A
has broad discretion
prosecutor
52}
{¶
663,
357, 364-365,
54
Hayes,
98 S.Ct.
See
v.
434 U.S.
defendant.
Bordenkircher
(1978).
plea bargain.
not
to offer a defendant a
required
604
The state is
L.Ed.2d
¶ 10,
although standard, plain unless is not error alleged error plain-error Under 191, Hill, v. 92 Ohio St.3d of the trial. State clearly the outcome changed error 554
203,
(2001),
citing
Long,
N.E.2d
State v.
St.2d
Ohio
that the not permitting error of Creech purported stipulate to one disability element in count indictment was not harmless. Majority opinion at ¶ 39. However, that wrong is the standard. Creech raised Old Therefore,
first time of appeals. proper standard of review was plain error, not harmless error. court did not from a legal deviate when it rule denied Creech’s
unilateral disability offer element of one of three charged *13 having counts of a weapon while under disability on the that all three basis counts would merge purposes Therefore, I sentencing. dissent. I would reverse the judgment of the court appeals and reinstate Creech’s convictions. Hanlin,
Jane M. Jefferson County Prosecuting Attorney, for appellant. Timothy Young, Defender, Ohio Public Hardwick, P. Stephen Assistant Defender, Public for appellee. Appellee. Ohio, Appellant, Richardson, v.
The State