[Cite as State v. Sheppard, 2012-Ohio-5783.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                         :

        Plaintiff-Appellant                           :            C.A. CASE NO. 2012 CA 41

v.                                                    :            T.C. NO.   12CR149

CHELSSIE E. SHEPPARD                                  :            (Criminal appeal from
                                                                    Common Pleas Court)
        Defendant-Appellee                            :

                                                      :

                                               ..........

                                               OPINION

                         Rendered on the        7th       day of    December     , 2012.

                                               ..........

AMY M. SMITH, Atty. Reg. No. 0081712, Assistant Clark County Prosecutor, 50 E.
Columbia Street, 4th Floor, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellant

JAMES D. MARSHALL, Atty. Reg. No. 0012648, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45502
       Attorney for Defendant-Appellee

                                               ..........

DONOVAN, J.

        {¶ 1}     Plaintiff-appellant the State of Ohio appeals a decision of the Clark County
                                                                                             2

Court of Common Pleas granting a pre-trial motion in limine filed by defendant-appellee

Chelssie Elizabeth Sheppard. The State filed a timely notice of appeal on June 5, 2012.

       {¶ 2}    The instant appeal stems from an incident which occurred on June 30, 2011,

in which the complainant, Kelly Miller, observed Sheppard repeatedly circling the block

where Miller’s residence was located. The record establishes that on that date, Miller had

an active protection order against Sheppard in Case No. 2010CVSDV04 which had been

issued in Champaign County and served on Sheppard on February 9, 2010.

       {¶ 3}    Sheppard was subsequently indicted on March 5, 2012, for violation of a

protection order, in violation of R.C. 2919.27(A)(1), a felony of the fifth degree. At her

arraignment on March 12, 2012, Sheppard pled not guilty, and the trial court released her

on her own recognizance. On May 17, 2012, Sheppard filed a pre-trial motion in limine.

In her motion, Sheppard asked the trial court to prohibit the State from using a prior

conviction set forth in the indictment. Sheppard argued that because the prior conviction

was based on a no contest plea, the State should not be permitted to introduce it in order to

raise the level of the offense to a felony of the fifth degree from a first degree misdemeanor.

A hearing was held on said motion on May 29, 2012. The trial court granted Sheppard’s

motion at the close of the hearing. The trial court’s decision was journalized in an entry

filed on May 31, 2012.

       {¶ 4}    It is from this judgment that the State now appeals.

       {¶ 5}    The State’s sole assignment of error is as follows:

       {¶ 6}    “THE TRIAL COURT ERRED IN GRANTING DEFENDANT’S MOTION

IN LIMINE TO PROHIBIT THE STATE FROM USING A PRIOR CONVICTION BASED
                                                                                           3

ON A NO CONTEST PLEA AGAINST SHEPPARD IN A SUBSEQUENT CRIMINAL

PROCEEDING.”

       {¶ 7}   In its sole assignment, the State contends that the trial court erred when it

granted Sheppard’s motion in limine which prohibited the State from using a prior

conviction at trial which was based on a no contest plea and which raised the level of

Sheppard’s current offense from a first degree misdemeanor to a fifth degree felony.

       {¶ 8}   Crim. R. 11(B)(2) states that “[t]he plea of no contest is not an admission of

defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment,

information, or complaint, and the plea or admission shall not be used against the defendant

in any subsequent civil or criminal proceeding.” This principle is echoed in Evid. R.

410(A)(2) which states that a plea of contest “is not admissible in any civil or criminal

proceeding against the defendant who made the plea.” Id.

       {¶ 9}   “The purpose behind the inadmissibility of no contest pleas in subsequent

proceedings is to encourage plea bargaining as a means of resolving criminal cases by

removing any civil consequences of the plea. State v. Mapes, 19 Ohio St.3d 108, 111, 484

N.E.2d 140 (1985). The rule also protects the traditional characteristic of the no contest

plea, which is to avoid the admission of guilt. Id.        The prohibition against admitting

evidence of no contest pleas was intended generally to apply to a civil suit by the victim of

the crime against the defendant for injuries resulting from the criminal acts underlying the

plea. Allstate Ins. Co. v. Simansky, 45 Conn. Supp. 623, 628, 738 A.2d 231 (1998).”

Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125 Ohio St.3d 362,

2010-Ohio-1043, 928 N.E.2d 685, at ¶ 14.
[Cite as State v. Sheppard, 2012-Ohio-5783.]
        {¶ 10} Although Evid. R. 410 explicitly states that a no contest plea is not

admissible in any subsequent civil or criminal proceeding, the State argues that there is an

exception to this rule in a criminal proceeding that was announced by the Supreme Court of

Ohio in State v. Mapes, 19 Ohio St.3d 108, 484 N.E.2d 140 (1985).                     In Mapes, the

defendant, on trial for a murder committed in Ohio, pled non vult, the equivalent of of a no

contest plea, to a murder in New Jersey. In the Ohio proceeding, the trial court permitted

police officers from New Jersey to testify that the defendant had been convicted of murder in

that state. Id. The evidence was introduced to establish a death specification pursuant to

R.C. 2929.04(A)(5). Significantly, the Supreme Court of Ohio stated:

                 Crim. R. 11(B)(2) and Evid. R. 410 prohibit only the

                 admission of a no contest plea. These rules do not prohibit

                 the admission of a conviction entered upon that plea when

                 such conviction is made relevant by statute. The trial court

                 was correct in admitting the evidence of the prior conviction

                 as it was not equivalent to the admission of the no contest plea

                 and it was not introduced by the prosecution for any purpose

                 other than establishing the specification.      The purpose of

                 Evid. R. 410 as it relates to criminal trials is to encourage and

                 protect certain statements made in connection with plea

                 bargaining and to protect the traditional characteristic of the no

                 contest plea which is avoiding the admission of guilt that is

                 inherent in pleas of guilty. These purposes are not disserved

                 by the admission of a conviction entered upon a no contest
                                                                                            5

               plea. Id.

       {¶ 11} It is undisputed that prior to the commission of the offense in the instant

case, Sheppard pled no contest to the charge of violation of a protection order and was found

guilty in a separate case. R.C. 2919.27(A)(1) states that “[n]o person shall recklessly

violate the terms of *** [a] protection order issued or consent agreement approved pursuant

to section 2919.26 or 3113.31 of the Revised Code.” Violation of a protection order

constitutes a misdemeanor of the first degree unless the offender has previously been

convicted of, pleaded guilty to, or been adjudicated a delinquent child for violation of a

protection order. R.C. 2919.27(B)(2) and (3).       If there was a previous conviction for

violation of a protection order, the offense becomes punishable as a felony of the fifth

degree. R.C. 2919.27(B)(3). Pursuant to the exception announced in Mapes, the State

argues that Sheppard’s prior conviction for violation of a protection order is made relevant

under the statute in R.C. 2919.27(B)(3), and is therefore admissible to raise the level of the

offense in the instant case.

       {¶ 12} Sheppard, however, essentially relies on another Supreme Court of Ohio

case, Elevators Mut. Ins. Co. v. J. Patrick O’Flaherty’s, Inc., 125 Ohio St.3d 362,

2010-Ohio-1043, 928 N.E.2d 685, for the proposition that her no contest plea in her prior

case renders her conviction inadmissible in the instant case. In Elevators, one of the owners

of a business that was damaged by a fire pled no contest to arson and insurance fraud and

was convicted. Id. The insurer brought an action seeking a declaration of no coverage and

recovery of $30,000.00 which had been advanced on the owner’s claim. Id. The trial court

refused to allow the insurer to use the owner’s plea of no contest against him on the basis
                                                                                              6

that doing so would contradict the goal of Evid. R. 410. The trial court, however, held that

the convictions based on the no contest plea were admissible to prove that the owner had

intentionally set the fire.

        {¶ 13} The Sixth District Court of Appeals reversed the judgment of the trial court,

rejecting the trial court’s distinction between a no contest plea and a conviction based on that

plea. The appellate court also held that the limited exception announced in Mapes did not

apply, and the defendant’s conviction based on the no contest plea was, therefore,

inadmissible. The Supreme Court of Ohio affirmed the decision of the Sixth District,

finding that “[a]pplication of [the exception in] Mapes has been limited to cases where the

fact of the conviction itself is made relevant by a statute or rule.” Elevators, 125 Ohio

St.3d 362, at ¶ 18. The Court went on to state that “the justification underlying the Mapes

exception does not extend to contract situations.” Id. Thus, the Court did not overrule

Mapes. Rather, the Court simply stated that the Mapes exception did not apply in “contract

situations.”

        {¶ 14} Sheppard also relies on State v. Hubbs, 7th Dist. Columbiana No. 09 CO 24,

2010-Ohio-4849, to support her argument that her no contest plea is inadmissible. Hubbs

involved the use of a prior conviction for misdemeanor failure to control in a felony DUI

trial. Both charges arose out of the same incident, but were adjudicated separately. Id. The

misdemeanor conviction occurred prior to the felony proceeding. The prosecution sought

admission of the prior conviction in order to prove that the defendant was operating his

vehicle at the time of the DUI offense. Id. at ¶ 4. Relying on the holding in Elevators, the

Seventh District Court of Appeals held that the misdemeanor conviction which arose from
                                                                                               7

the defendant’s no contest plea was inadmissible in the proceedings for the felony DUI

offense. Id. at ¶ 25. The appellate court found that “the focus in the rules and in Elevators

is that the no contest plea and conviction resulting from that plea cannot be used in any

action.” Unlike the instant case, however, the defendant’s prior conviction in Hubbs for

failure to control was not “made relevant” by the DUI statute insofar as the prior conviction

did not enhance or otherwise affect the DUI offense. Accordingly, the Mapes exception did

not apply to facts as presented in Hubbs, and the case is clearly distinguishable on that basis.

       {¶ 15} Upon review, we find that the Mapes exception applies in the instant case,

and Sheppard’s prior conviction for violation of a protection order based on a no contest plea

was admissible in the instant case. Sheppard’s prior conviction was “made relevant” by

R.C. 2919.27(B)(2) and (3) which state that violating a protection order is a misdemeanor of

the first degree unless the offender has previously been convicted of violation of a protection

order, which raises the level of the offense to a fifth degree felony. The Supreme Court of

Ohio’s holding in Elevators is clearly distinguishable from the facts in the instant case.

Thus, the trial court erred when it granted Sheppard’s motion in limine which prohibited the

State from admitting the prior conviction for violation of a protection order at trial to

enhance the level of the current offense.

       {¶ 16} The State’s of Ohio’s sole assignment of error is sustained.

       {¶ 17} The State’s sole assignment of error having been sustained, the order of the

trial court is reversed, and this matter is remanded for proceedings consistent with this

opinion.

                                            ..........
[Cite as State v. Sheppard, 2012-Ohio-5783.]
FAIN, J. and FROELICH, J., concur.

Copies mailed to:

Amy M. Smith
James D. Marshall
Hon. Richard J. O’Neill
