State v. VarnerState v. Varner
OPINION
Criminal Appeals from the Portage County Municipal Court, Ravenna Division, Case No. 2018 TRC 15167 R.
Judgment: Reversed and remanded.
Victor V. Vigluicci, Portage County Prosecutor, and Theresa M. Scahill, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, Ohio 44266 (For Plaintiff-Appellant).
Gregg A. Rossi and James N. Melfi, Rossi & Rossi Co., 26 Market Street, 8th Floor, P.O. Box 6045, Youngstown, Ohio 44501 (For Defendant-Appellee).
MARY JANE TRAPP, J.
{¶1} Appellant, the state of Ohio (the “state“), appeals the judgment entry of the Portage County Municipal Court, Ravenna Division, precluding the state from introducing any evidence of appellee‘s, Lisa Marie Varner (“Ms. Varner“), prior conviction for operating a vehicle under the influence of alcohol (“OVI“) and indicating it will not instruct the jury regarding any prior OVI convictions within the last 20 years.
{¶3} After a careful review of the record and pertinent law we find as follows:
{¶4} First, based on the plain language of the statute and the Supreme Court of Ohio‘s precedent, Ms. Varner‘s prior OVI conviction is an essential element of a refusal offense under
{¶5} Second, the parties’ stipulation regarding the fact of Ms. Varner‘s prior conviction is admissible under
{¶6} Finally, the trial court must instruct the jury regarding Ms. Varner‘s prior OVI to correctly state the law for a refusal offense under
{¶7} Thus, we reverse the judgment of the Portage County Municipal Court, Ravenna Division, and remand for further proceedings consistent with this opinion.
Substantive and Procedural History
{¶8} Following a traffic stop on October 5, 2018, Ms. Varner was charged with (1) OVI in violation of
{¶10} Ms. Varner also filed a motion in limine to preclude the state from introducing, among other things, any evidence of her prior OVI conviction. Citing this court‘s decision in State v. Baird, 11th Dist. Lake No. 2014-L-098, 2015-Ohio-4539, Ms. Varner argued that evidence of her prior OVI conviction violated
{¶11} The state filed a response, arguing that Ms. Varner‘s motion in limine would prevent it from proving an element of the refusal offense.
{¶12} In August 2019, the trial court held a hearing on Ms. Varner‘s motion in limine.2 After hearing counsels’ arguments, the trial court ruled that the state could not introduce any evidence of Ms. Varner‘s prior conviction, including the stipulation.
{¶13} The trial court also addressed jury instructions. It noted that a second offense of OVI under either
{¶14} The trial court issued a judgment entry nunc pro tunc granting Ms. Varner‘s motion. Relevant here, the trial court precluded the state from introducing any evidence of Ms. Varner‘s prior OVI conviction from the Barberton Municipal Court and stated it will not instruct the jury regarding any prior OVI convictions within the last 20 years.
{¶15} The state filed a notice of appeal as of right pursuant to
{¶16} The state sets forth the following two assignments of error for our review:
{¶17} “[1.] The trial court erred by prohibiting the State from introducing any evidence of Ms. Varner‘s prior OVI conviction, including her stipulation to that conviction.
{¶18} “[2.] The trial court erred by refusing to instruct the jury regarding Ms. Varner‘s prior OVI conviction within 20 years of the current offense.”
Exclusion of Evidence
{¶19} In its first assignment of error, the state argues that the trial court erred in precluding it from introducing any evidence of Ms. Varner‘s prior OVI conviction.
{¶20} We review a trial court‘s evidentiary rulings under an abuse of discretion standard of review. Bates-Brown v. Brown, 11th Dist. Trumbull No. 2006-T-0089, 2007-Ohio-5203, ¶ 20. An abuse of discretion is the trial court‘s “failure to exercise sound,
{¶21} When an appellate court is reviewing a pure issue of law, the mere fact that the reviewing court would decide the issue differently is enough to find error (although harmless errors and errors not preserved for appellate review are not reversible). Id. at ¶ 67, fn. 2. By contrast, where the issue on review has been confided to the discretion of the trial court, the mere fact that the reviewing court would have reached a different result is not enough, without more, to find error. Id. at ¶ 67.
Essential Element
{¶22} The first issue is whether a prior OVI conviction is an essential element of a refusal offense under
{¶23} The essential elements of a given offense are those facts which must be proven to obtain a conviction of the accused. State v. Jones, 11th Dist. Portage Nos. 2010-P-0051 & 2010-P-0055, 2011-Ohio-5109, ¶ 16. The state must prove all elements of an offense beyond a reasonable doubt.
{¶24}
{¶25} “No person who, within twenty years of the conduct described in division (A)(2)(a) of this section, previously has been convicted of or pleaded guilty to a violation of this division, a violation of division (A)(1) or (B) of this section, or any other equivalent offense shall do both of the following:
{¶26} “(a) Operate any vehicle, streetcar, or trackless trolley within this state while under the influence of alcohol, a drug of abuse, or a combination of them;
{¶27} “(b) Subsequent to being arrested for operating the vehicle, streetcar, or trackless trolley as described in division (A)(2)(a) of this section, being asked by a law enforcement officer to submit to a chemical test or tests under section 4511.191 of the Revised Code, and being advised by the officer in accordance with section 4511.192 of the Revised Code of the consequences of the person‘s refusal or submission to the test or tests, refuse to submit to the test or tests.” (Emphasis added.)
{¶28} Thus, based the plain language of the statute, Ms. Varner‘s prior OVI offense appears to be an essential element of a refusal offense under
{¶29} Ms. Varner argues that her prior OVI conviction is not an essential element based on the Supreme Court of Ohio‘s decision in State v. Allen, 29 Ohio St.3d 53 (1987). In Allen, the defendant was charged with OVI pursuant to
{¶30} At the time Allen was decided, however,
{¶31} The Ohio General Assembly enacted
{¶32} Relying on Hoover, several of our sister districts have concluded that a prior OVI conviction in 20 years is an essential element of
{¶33} Based on the plain language of the statute and Hoover, we agree with our sister districts and hold that Ms. Varner‘s prior OVI conviction is an essential element of
{¶34} The second issue is whether evidence of Ms. Varner‘s prior conviction is inadmissible under
{¶35}
{¶36} Ms. Varner argues that this court previously resolved this issue in Baird, supra. In that case, a defendant with two prior OVI convictions was subsequently charged with another OVI offense and a refusal offense under
{¶37} Mr. Baird argued that the admission of this evidence violated
{¶38} In Old Chief, the defendant was charged with violating a federal statute prohibiting the possession of a firearm by anyone who had a prior conviction of a crime punishable by a term of imprisonment exceeding one year. Old Chief, 519 U.S. at 174-75. The defendant offered to stipulate to the fact of the prior conviction and sought to preclude the prosecutor
{¶39} The Assistant U.S. Attorney refused to join in a stipulation, and the district court ruled that he did not have to stipulate. Id. at 177. Over objection, the government introduced the order of judgment and commitment for the defendant‘s prior conviction, and the defendant was ultimately found guilty on all counts. Id.
{¶40} The U.S. Supreme Court held that the district court abused its discretion by admitting the full record of a prior judgment when a stipulation was available. Id. at 191. The court concluded that when the sole issue pertaining to a prior conviction is a defendant‘s legal status, i.e., whether a defendant is subject to prosecution and conviction, then the government is required to accept a defendant‘s stipulation regarding the prior conviction to avoid undue prejudice. Baird at ¶ 26, citing Old Chief at 190-92. The court emphasized that its holding represented a limited exception to the general principle that “the prosecution is entitled to prove its case free from any defendant‘s option to stipulate the evidence away.” Old Chief at 189.
{¶41} Based on Old Chief, this court held in Baird that the admission into evidence of Mr. Baird‘s prior OVI convictions when he was willing to stipulate that he had a prior conviction was unfairly prejudicial and gave the jury an improper basis for its verdict. Id. at ¶ 27.3
{¶43} Further, the present case is factually distinguishable from Baird. In Baird, the state did not accept Mr. Baird‘s offer to stipulate to a prior OVI conviction. Here, the state accepted Ms. Varner‘s offer to stipulate. Thus, Baird does not address, much less answer, the issue presently before us, i.e., whether and to what extent a stipulation of a prior OVI conviction is admissible. Instead, Old Chief supplies that answer.
{¶44} This court has recognized that Old Chief stands for the substantive proposition that, in order to avoid undue prejudice, a court must accept a defendant‘s stipulation on an element of a crime which simply goes to his or her legal status. State v. Nadock, 11th Dist. Lake No. 2009-L-042, 2010-Ohio-1161, ¶ 30. However, Old Chief neither states nor implies that the jury must remain ignorant of that prior conviction. Id. Rather, where a defendant‘s legal status is a material element of a charged crime, “the fact of the qualifying conviction is alone what matters under the statute.” Id., quoting Old Chief at 190. As a result: “[t]he most the jury needs to know is that the conviction admitted by the defendant falls within the class of crimes that Congress thought should bar a convict from possessing a gun, and this point may be made readily in a defendant‘s admission and underscored in the court‘s jury instruction.” Id., quoting Old Chief at 190-91. Thus, the stipulation ensures that the jury would know only the fact of a prior felony conviction, which is admissible under
{¶46} This holding fully complies with
{¶47} Accordingly, in State v. Melton, 11th Dist. Lake No. 2009-L-078, 2010-Ohio-1278, this court held that the trial court did not err in accepting and reading to the jury a joint stipulation as to the defendant‘s prior illegal drug trafficking conviction where it was an essential element of the charge of having a weapon while under disability. Id. at ¶ 2. We noted that the stipulation simply recited, verbatim, the statutory name of the offense
{¶48} Based on the foregoing, the trial court abused its discretion by precluding the state from introducing the stipulation regarding Ms. Varner‘s prior OVI conviction. The trial court may supplement the stipulation with an appropriate limiting instruction.
{¶49} The state‘s first assignment of error has merit.
Jury Instruction
{¶50} In its second assignment of error, the state argues that the trial court erred by stating it will not instruct the jury regarding Ms. Varner‘s prior OVI conviction.
{¶51} An appellate court reviews a trial court‘s refusal to give a requested jury instruction for abuse of discretion. State v. Adams, 144 Ohio St.3d 429, 2015-Ohio-3954, ¶ 240.
{¶52} In charging the jury, the court must state to it all matters of law necessary for the information of the jury in giving its verdict.
{¶53} Since Ms. Varner‘s prior OVI conviction is an essential element of a refusal offense under
{¶54} The state requested that the trial court utilize the standard instruction contained in Ohio Jury Instructions, CR Section 711.19(A)(2) (Rev. Apr. 1, 2017). The Ohio Jury Instructions are authoritative and are generally to be followed and applied by
{¶55} Accordingly, the trial court abused its discretion by refusing to instruct the jury regarding Ms. Varner‘s prior OVI conviction.
{¶56} The state‘s second assignment of error has merit.
{¶57} Based on the foregoing, the judgment of the Portage County Municipal Court, Ravenna Division, is reversed, and this matter is remanded for further proceedings consistent with this opinion.
TIMOTHY P. CANNON, P.J.,
CYNTHIA WESTCOTT RICE, J.,
concur.