[Cite as State v. Heyder, 2014-Ohio-1066.]

                              IN THE COURT OF APPEALS OF OHIO

                                   TENTH APPELLATE DISTRICT


State of Ohio,                                      :

                 Plaintiff-Appellee,                :
                                                                    No. 13AP-298
v.                                                  :            (C.P.C. No. 12CR-4115)

Jacob M. Heyder,                                    :          (REGULAR CALENDAR)

                 Defendant-Appellant.               :




                                             D E C I S I O N

                                     Rendered on March 20, 2014


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Yeura R. Venters, Public Defender, and John W. Keeling, for
                 appellant.

                   APPEAL from the Franklin County Court of Common Pleas

KLATT, J.
        {¶ 1} Defendant-appellant, Jacob M. Heyder, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas. Because
the trial court abused its discretion by admitting certain evidence, we reverse that
judgment and remand the matter for further proceedings.
I. Factual and Procedural Background
        {¶ 2} On August 16, 2012, a Franklin County Grand Jury indicted appellant with
one count of aggravated robbery in violation of R.C. 2911.01, two counts of robbery in
violation of R.C. 2911.02, and one count of kidnapping in violation of R.C. 2905.01. The
charges alleged that appellant robbed a grocery store in the northwest part of Columbus,
No. 13AP-298                                                                               2

Ohio, and that he possessed a knife during the robbery. Appellant entered a not guilty
plea to the charges and proceeded to a jury trial.
       {¶ 3} Before trial, appellant filed a motion to prohibit the state from, in part,
presenting evidence of a knife that police found in a bathroom where they arrested
appellant a few days after the robbery. Appellant argued that the state could not prove
that the knife was the one used during the robbery. At a hearing on the day of trial,
appellant requested the trial court to ask the victim whether the knife found was the one
used during the robbery. If the victim could not identify the knife, then appellant wanted
evidence of the knife excluded. The trial court denied appellant's request and allowed the
state to proceed with the knife evidence.
       {¶ 4} At trial, the victim of the robbery identified appellant as the person who
robbed her store with a knife. However, when the state presented the victim with the
knife that the police had connected with appellant, she said that she had never seen the
knife before and that it was not the knife used during the robbery. The victim described
the knife used during the robbery as a small, Swiss-Army type knife. While not ever
clearly described by any witness, the trial court described the knife found near appellant
at the time of his arrest as a "buck knife," a folding knife with a three and one-half inch
blade, a knife that is "very much larger than a key chain size Swiss army knife." (Tr. 93-
94.)
       {¶ 5} After the victim could not identify the knife as the one used during the
robbery, appellant renewed his motion to exclude any further evidence or reference to the
"irrelevant and unduly prejudicial knife." (Tr. 90.) Appellant did not seek to have the
victim's testimony about the knife stricken but sought the exclusion of any further
testimony about the knife. The state argued that the witness could be mistaken about the
knife and that it had a good-faith basis to present the knife to the witness. The trial court
initially wondered if the knife evidence was helpful to appellant, because if his knife was
not the one used during the robbery, it would arguably support his argument that the
victim wrongly identified him as the robber. The trial court also wondered why the knife
would be relevant after the victim admitted that it was not the knife used during the
robbery.
No. 13AP-298                                                                              3

       {¶ 6} The trial court, however, then focused on the possible jury confusion that
could occur if there was no explanation of why the knife was presented to the victim.
Ultimately, the trial court allowed the state to present additional knife evidence regarding
how and why the knife appeared at trial, concluding that the state should be able to
explain where the knife came from. (Tr. 99.) The trial court also opined that it saw no
prejudice at this point in the trial and actually perceived a benefit to appellant, because
the victim said that the knife was not the one used during the robbery.
       {¶ 7} Subsequent witnesses testified regarding appellant's arrest five days after
the robbery. After the arrest, which occurred in the bathroom of a bar, a bar employee
brought to the police a knife he found in the bathroom. DNA found on the knife was
consistent with appellant's DNA. That knife was the one presented to the victim of the
robbery. After the presentation of testimony, and over appellant's objection, the trial
court admitted the knife into evidence and allowed it to go back to the jury.
       {¶ 8} The jury found appellant guilty of all the charges and the trial court
sentenced him accordingly.
II. The Appeal
       {¶ 9} Appellant appeals and assigns the following error:
              THE TRIAL COURT ERRED WHEN IT ALLOWED THE
              STATE TO PRESENT TESTIMONY, OVER OBJECTION,
              THAT THE DEFENDANT HAD A KNIFE WHEN HE WAS
              ARRESTED FIVE DAYS AFTER THE ROBBERY. THE
              COURT FURTHER ERRED WHEN IT ALLOWED THE
              STATE TO INTRODUCE THIS KNIFE INTO EVIDENCE
              WHEN THE STATE KNEW, AND THE EVIDENCE
              ESTABLISHED, THAT THE KNIFE WAS NOT THE ONE
              USED TO COMMIT THE ROBBERY, WAS OF NO
              RELEVANCE TO THE CASE, AND WAS USED AS NOTHING
              MORE THAN OTHER BAD ACT EVIDENCE USED TO
              IMPROPERLY PROVE THAT THE DEFENDANT WAS A
              DANGEROUS PERSON OR A PERSON MORE LIKELY TO
              BE GUILTY OF A ROBBERY.
No. 13AP-298                                                                                 4

           A. Did the Trial Court Abuse its Discretion by Admitting the
           Knife Evidence?

           {¶ 10} Appellant argues in his lone assignment of error that the trial court abused
its discretion by admitting irrelevant testimony about a knife appellant had days after the
robbery which was not the one used in the robbery.1 We agree.
           {¶ 11} The admission or exclusion of evidence is a decision within the trial court's
sound discretion. Columbus v. Bishop, 10th Dist. No. 08AP-300, 2008-Ohio-6964, ¶ 18,
citing State v. Sage, 31 Ohio St.3d 173 (1987), paragraph two of the syllabus. Thus, the
trial court's decision to admit the knife testimony will only be reversed if the court abused
its discretion. State v. Cunningham, 10th Dist. No. 06AP-145, 2006-Ohio-6373, ¶ 33;
State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, ¶ 130. Although an abuse of
discretion is typically defined as an unreasonable, arbitrary, or unconscionable decision,
State v. Beavers, 10th Dist. No. 11AP-1064, 2012-Ohio-3654, ¶ 8, we note that no court
has the authority, within its discretion, to commit an error of law. State v. Beechler, 2d
Dist. No. 09-CA-54, 2010-Ohio-1900, ¶ 70.
           {¶ 12} Appellant argues that the knife evidence admitted by the trial court was
irrelevant pursuant to Evid.R. 401 because the victim testified that it was not the knife
used in the robbery. Appellant also argues that the knife evidence was improper "other
acts" evidence in violation of Evid.R. 404(B). Evid.R. 401 defines "relevant" evidence as
"evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without
the evidence." Generally, all relevant evidence is admissible and irrelevant evidence is
inadmissible. Evid.R. 402; State v. Sowell, 10th Dist. No. 06AP-443, 2008-Ohio-3285,
¶ 78. Additionally, pursuant to Evid.R. 404(B), "[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show action in
conformity therewith." Such evidence may be admissible, however, for other purposes,
such as "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident." State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
¶ 66, quoting Evid.R. 404(B).


1   We will refer to this testimony as the "knife evidence."
No. 13AP-298                                                                                  5

          {¶ 13} We agree that the knife evidence was irrelevant after the victim testified that
it was not the knife used during the robbery. Walker v. United States, 490 F.2d 683, 684-
85 (8th Cir.1974) (gun found in possession of defendant days after armed bank robbery
was irrelevant for defendant's trial on bank robbery after two witnesses to the robbery
testified that the gun was not used in the robbery).
          {¶ 14} The state's argument in support of admissibility of the knife evidence
ignores appellant's evidentiary concerns. Instead, the state argues that once the victim
could not identify the knife as the one used during the robbery, the trial court had
discretion to decide how best to explain the presentation of the knife evidence at the trial.
The trial court could have prohibited further reference to the knife or, as it chose to do, it
could have allowed the state to present additional evidence to explain why the knife was
presented to the victim so that the jury was not left wondering. The state argues that the
trial court's choice to allow the additional evidence was the better choice, especially
considering the trial court's belief that the knife evidence actually benefited the appellant.
          {¶ 15} To support its argument, the state relies on language from Old Chief v.
United States, 519 U.S. 172 (1997). A review of that case, however, reveals that the state's
reliance on that language is misplaced. In Old Chief, the defendant had been charged with
possession of a firearm by someone with a prior felony conviction. Before trial, the
defendant attempted to stipulate to the fact of the prior conviction without revealing the
name and nature of the conviction, arguing that the name and nature of the prior
conviction2 would unfairly prejudice him.                 The prosecutor refused to enter into a
stipulation because it interfered with the right "to prove his case his own way." Id. at 177.
The district court rejected the stipulation and allowed the prosecution to present evidence
to prove the prior conviction, specifically, a judgment of conviction that included the
name and nature of the offense. After a conviction, the appellate court affirmed that
decision, noting that the prosecution is entitled to prove the prior conviction element of
an offense through introduction of probative evidence.
          {¶ 16} The Supreme Court identified the issue of the case as "whether a district
court abuses its discretion if it spurns [an offer to concede the fact of the prior conviction]
and admits the full record of a prior judgment, when the name or nature of the prior

2
    The defendant had been convicted of an assault that caused bodily injury. Id. at 175.
No. 13AP-298                                                                               6

offense raises the risk of a verdict tainted by improper considerations, and when the
purpose of the evidence is solely to prove the element of prior conviction." Id. at 174.
Relying heavily on the risk of unfair prejudice that results from the jury's knowledge of the
name and nature of the previous conviction and the fact that the statutory offense only
required any felony conviction, the court concluded that a district court does abuse its
discretion when it admits the record of a conviction if a defendant offers to stipulate to
that fact. Id. at 190-91. Thus, the issue in Old Chief concerned how a district court should
allow presentation of evidence to prove a relevant matter at trial, i.e., a prior conviction.
This issue is different from that presented in the instant case, where the knife evidence
became irrelevant when the victim could not identify the knife as the one used during the
robbery.
       {¶ 17} As the state points out, the court in Old Chief went on to discuss jurors'
expectations and the concern that jurors may feel like they are not being told the whole
story because they had heard a stipulation or admission instead of "robust evidence" that
would be used to prove some fact. Id. at 189. In light of the precise issue facing the Court
in Old Chief, that of choosing one permissible method to prove a relevant fact over
another permissible alternative, the discussion regarding jurors' expectations and the
quality of evidence the prosecution may present in support of its case has some resonance.
However, in a case such as this, where the question is not how the prosecution may prove
a relevant issue but whether the prosecution may prove an irrelevant issue, that concern
has much less or even no significance. Thus, the language in Old Chief relied on by the
state is not persuasive in this appeal.
       {¶ 18} Ultimately, we conclude that the trial court abused its discretion by
admitting the knife evidence. Once the victim testified that the knife presented to her was
not the one used during the robbery, that knife became irrelevant to the determination of
the action. The fact that the state wanted to explain to the jury why the knife was
presented to the victim does not change the irrelevant nature of the evidence.
       B. The Trial Court's Error Materially Prejudiced Appellant
       {¶ 19} Our analysis does not end with a holding that the trial court abused its
discretion by admitting the irrelevant knife evidence. Appellant must also have suffered
material prejudice from the introduction of the irrelevant knife evidence.          State v.
No. 13AP-298                                                                             7

Zamorski, 141 Ohio App.3d 521, 526 (1st Dist.2000); State v. Lascola, 61 Ohio App.3d
228, 242 (10th Dist.1988) (admission of irrelevant testimony was prejudicial error).
Here, the irrelevant knife evidence was materially prejudicial to appellant. If the trial
court had not allowed the knife evidence, the jury still would have heard testimony from
the victim that appellant robbed her at knife point. This was the only evidence linking
appellant to the robbery. The admission of the knife evidence, however, allowed the jury
to learn that appellant possessed a knife, and tried to hide the knife at the time of his
arrest, even though the knife was not used during the robbery. Although the knife
evidence could demonstrate that appellant was not the person who robbed the store, it
also could suggest that appellant is a dangerous person who carries a knife and that he
could have used a knife, albeit a different knife, during the robbery. This is prejudicial.
Walker at 684; Lascola at 241-42 (prejudicial error admitting testimony attempting to
show defendant had a bad character such that he would commit criminal offense).
III. Conclusion
      {¶ 20} We sustain appellant's assignment of error. Accordingly, we reverse the
judgment of the Franklin County Court of Common Pleas and remand the matter for
further proceedings.
                                                    Judgment reversed; cause remanded.

                          CONNOR and O'GRADY, JJ., concur.
