[Cite as State v. Burns, 2012-Ohio-3100.]




              IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO

STATE OF OHIO                                    :

        Plaintiff-Appellee                       :    C.A. CASE NO. 2011CA0070

vs.                                              :    T.C. CASE NO. 11CR0117

WILLIAM R. BURNS, JR.                            :    (Criminal Appeal from
                                                       Common Pleas Court)
        Defendant-Appellant                      :

                                            .........

                                            OPINION

                               Rendered on the 6th day of July, 2012.

                                            .........

Stephen K. Haller, Pros, Attorney; Elizabeth A. Ellis, Asst. Pros. Attorney, Atty. Reg.
No. 0074332, 61 Greene Street, Xenia, OH 45385
       Attorneys for Plaintiff-Appellee

Ralph C. Buss, Atty. Reg. No. 0011571; Jerri Mitchell-Tharp, Atty. Reg. No. 0079565,
168 E. High Street, Painesville, OH 44077     Attorneys for Defendant-Appellant

                                            .........

GRADY, P.J.:

        {¶ 1} Defendant William Burns appeals from his conviction and sentence for

falsification to obtain a concealed handgun license, R.C. 2921.13(A)(14), a felony of the

fourth degree.

        {¶ 2} In February 2011, Defendant presented an application for a concealed handgun
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license to the Greene County Sheriff’s Department. Question number 9 on the application

asked, “Have you ever been convicted of, or pleaded guilty to, a misdemeanor offense of

violence, charge of domestic violence, or a similar offense in this or any other state?”

Defendant responded, “No.”

       {¶ 3} Upon receipt of the application, Julie Devoe performed a background check on

Defendant. Although Defendant’s BCI record did not reflect a prior conviction, other records

indicated that Defendant had pled guilty to domestic violence in Montgomery County in 1995.

 Devoe requested and received several documents from the Montgomery County Clerk of

Courts regarding that conviction. The documents bore the same name, date of birth, and

social security number that Defendant had written on his application for the concealed

handgun license. Devoe sent a denial letter to Defendant and then forwarded the application

and court records to the detective section.

       {¶ 4} The case was assigned to Detective Metz for investigation. When Detective

Metz spoke with Defendant, Defendant stated that he did not believe that he had a conviction,

and would provide paperwork to that effect. Detective Metz never received any documents

or other information from Defendant.

       {¶ 5} Defendant was indicted on one count of falsification to obtain a concealed

handgun license, R.C. 2921.12(A)(14). The case proceeded to a jury trial. At the conclusion

of the trial, Defendant made a motion for acquittal pursuant to Crim.R. 29. The trial court

overruled the motion. The jury found Defendant guilty of the charge and the trial court

sentenced him to community control.

       {¶ 6} Defendant appeals, raising the following assignment of error:
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“THE TRIAL COURT ERRED IN PARTIALLY DENYING APPELLANT’S CRIM.R. 29

MOTION FOR ACQUITTAL BECAUSE APPELLEE FAILED TO PRODUCE ANY

EVIDENCE THAT APPELLANT HAD PREVIOUSLY ENTERED A GUILTY PLEA TO

THE CHARGE OF DOMESTIC VIOLENCE.”

       {¶ 7} In State v. Haggerty, 2d Dist. Montgomery No. 24405, 2011-Ohio-6705, ¶

19-21, we wrote:

              When considering a Crim.R. 29 motion for acquittal, the trial court

              must construe the evidence in a light most favorable to the State and

              determine whether reasonable minds could reach different

              conclusions on whether the evidence proves each element of the

              offense charged beyond a reasonable doubt. State v. Bridgeman

              (1978), 55 Ohio St.2d 261. The motion will be granted only when

              reasonable minds could only conclude that the evidence fails to

              prove all of the elements of the offense. State v. Miles (1996), 114

              Ohio App.3d 738.

                     A Crim.R. 29 motion challenges the legal sufficiency of the

              evidence.   A sufficiency of the evidence argument challenges

              whether the State has presented adequate evidence on each element

              of the offense to allow the case to go to the jury or sustain the

              verdict as a matter of law. State v. Thompkins (1997), 78 Ohio

              St.3d 380. The proper test to apply to such an inquiry is the one set

              forth in paragraph two of the syllabus of State v. Jenks (1991), 61
                                                                                              4

                Ohio St.3d 259:

                       “An appellate court’s function when reviewing the

                sufficiency of the evidence to support a criminal conviction is to

                examine the evidence admitted at trial to determine whether such

                evidence, if believed, would convince the average mind of the

                defendant’s guilt beyond a reasonable doubt. The relevant inquiry

                is whether, after viewing the evidence in a light most favorable to

                the prosecution, any rational trier of fact could have found the

                essential elements of the crime proven beyond a reasonable doubt.”

       {¶ 8} Defendant contends that his conviction is not supported by sufficient evidence

because the State failed to produce a certified judgment entry as proof of his prior conviction.

The State acknowledges that it offered no certified judgment entry, but insists that it was not

required to have done so.

       {¶ 9} The State called as a witness Assistant Chief Deputy Clerk, Pamela Dyer, of

the office of Montgomery County Clerk of Courts.           Dyer explained that, in 1995, the

municipal court judge1 wrote his judgment directly on the case file, and no separate signed

judgments were generated.      Through this witness, the State offered, and the trial court

admitted into evidence, certified copies of two pages of the clerk of court’s docket, which tend

to prove the existence of Defendant’s 1995 conviction for domestic violence.

       {¶ 10} The issue now before us is whether the certified docket pages were sufficient


            1
           The Montgomery County Clerk of Courts maintains the
    docket for the County Court, now the Montgomery County Municipal
    Court.
                                                                                              5

proof of a prior conviction from which the jurors could find that Defendant had lied on his

application for a concealed handgun license. For the following reasons, we answer that

question in the affirmative.

          {¶ 11} Defendant was convicted of falsification to obtain a concealed handgun

license in violation of R.C. 2921.12(A)(14), which states in relevant part: “No person shall

knowingly make a false statement * * * when * * * the statement is made in an application

filed with a county sheriff * * * in order to obtain or renew a license to carry a concealed

handgun * * *.” The false statement of which Defendant was accused of making on his

application was that he had never “been convicted of, or pleaded guilty to, a misdemeanor

offense of violence, charge of domestic violence, or a similar offense, in this or any other

state.”

          {¶ 12} Clearly, Defendant’s prior conviction is not an element of the offense with

which he was charged. However, under the facts of this case, the existence of a prior

conviction is relevant to the issue of fact of whether Defendant made a false statement.

          {¶ 13} Defendant has not cited, nor have we found, any statute, rule, or case law that

supports Defendant’s contention that in order to prove that he made a false statement in

violation of R.C. 2921.13(A)(14), the State was required to provide a certified copy of the

judgment of his prior conviction. On the other hand, we have found an abundance of

guidance from different situations in which a defendant’s prior conviction is an element

required to be proven beyond a reasonable doubt by the State.

          {¶ 14} R.C. 2945.75(B)(1) states: “Whenever in any case it is necessary to prove a

prior conviction, a certified copy of the entry of judgment in such prior conviction together
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with evidence sufficient to identify the defendant named in the entry as the offender in the

case at bar, is sufficient to prove such prior conviction.” Ohio courts have held that R.C.

2945.75(B)(1) provides one, non-exclusive method of establishing a prior conviction. State

v. Lewis, 4th Dist. Lawrence No. 10CA24, 2011-Ohio-911, ¶ 17, citations omitted. Accord

State v. Volpe, 10th Dist. Franklin No. 06AP-1153, 2008-Ohio-1678, ¶ 51. Other means of

proving prior convictions remain available to the State.

       {¶ 15} For example, the existence of a prior conviction may be introduced through the

testimony of one who has knowledge of the prior conviction and can identify the offender as

involved in both cases, such as a probation officer. State v. Hill, 6th Dist. Fulton Nos.

F-06-013, F-06,-014, 2007-Ohio-2832, ¶ 10, citing State v. Jarvis, 11th Dist. Portage No.

98-P-0081, 1999 WL 1313645 (Dec. 23, 1999).

       {¶ 16} More relevant to this case, a prior conviction also may be established with

certified copies of the trial court docket. Id., citing State v. Chaney, 128 Ohio App.3d 100,

105, 713 N.E.2d 1118 (12th Dist.1998). Accord, Volpe, at ¶ 53 (certified data compilations

of trial court dockets sufficient to prove defendant’s prior convictions). If certified trial court

docket pages are sufficient to prove a prior conviction in a case where the existence of the

conviction is an element to be proven beyond a reasonable doubt, we see no reason why the

same evidence should not be sufficient when the State must prove the Defendant lied about

not having a prior conviction.

       {¶ 17} Finally, Defendant argues that the State failed to prove that his conviction was

constitutionally valid. However, R.C. 2945.75(B)(3) states that “[i]f the defendant claims a

constitutional defect in any prior conviction, the defendant has the burden of proving the
                                                                                         7

defect by a preponderance of the evidence.” Defendant has failed to do so.

       {¶ 18} Defendant’s assignment of error is overruled. The judgment of the trial court

will be affirmed.

FAIN, J., And CUNNINGHAM, J., concur.

(Hon. Penelope R. Cunningham, First District Court of Appeals, sitting by assignment of the
Chief Justice of the Supreme Court of Ohio.)

Copies mailed to:

Elizabeth A. Ellis, Esq.
Ralph C. Buss, Esq.
Jerri Mitchell-Tharp, Esq.
Hon. Stephen Wolaver
