[Cite as State v. Overton, 2017-Ohio-8389.]


                                        COURT OF APPEALS
                                       STARK COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT



STATE OF OHIO                                 :      JUDGES:
                                              :      Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                    :      Hon. Craig R. Baldwin, J.
                                              :      Hon. Earle E. Wise, Jr., J.
-vs-                                          :
                                              :
JONAS L. OVERTON                              :      Case No. 2016CA00224
                                              :
        Defendant-Appellant                   :      OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Court of Common
                                                     Pleas, Case No. 2016CR0894




JUDGMENT:                                            Vacated and Remanded




DATE OF JUDGMENT:                                    October 30, 2017




APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      BRADLEY R. IAMS
Prosecuting Attorney                                 SAMUEL J. FERRUCCIO, JR.
By: KATHLEEN O. TATARSKY                             JEFFRY V. SERRA
Assistant Prosecuting Attorney                       301 Cleveland Avenue NW
110 Central Plaza South, Suite 510                   Canton, OH 44702
Canton, OH 44702-1413
Stark County, Case No. 2016CA00224                                                   2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Jonas L. Overton, appeals his December 6, 2016

convictions and sentence in the Court of Common Pleas of Stark County, Ohio.

Plaintiff-Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

       {¶ 2} Appellant was under surveillance by the FBI Safe Streets Task Force

which focuses on narcotics investigations. For several weeks, appellant was observed

coming and going from an apartment in Canton, Ohio.         On May 9, 2016, Jackson

Township police officers and the FBI task force executed a search warrant on the

apartment. No one was inside the apartment at the time. During the search, police

discovered drugs, a loaded firearm, a magazine for the firearm, and a receipt with

appellant's name on it. Later, appellant was stopped and a key to the apartment was

found in appellant's possession.

       {¶ 3} On May 17, 2016, the Stark County Grand Jury indicted appellant on two

counts of possession of drugs (cocaine and heroin) in violation of R.C. 2925.11 and one

count of having weapons under disability in violation of R.C. 2923.13. The weapons

charge stemmed from a 2005 conviction for trafficking in cocaine.

       {¶ 4} During a pretrial held on October 20, 2016, defense counsel made an oral

motion to stipulate to appellant's 2005 conviction and exclude the presentation of any

evidence on the prior conviction. The trial court denied the stipulation and motion,

finding because the prior conviction was an element of the weapons offense, the state

would be permitted to prove the element. The trial court agreed to give the jury a

limiting instruction on the use of the prior conviction.
Stark County, Case No. 2016CA00224                                                    3


       {¶ 5} On October 24, 2016, appellant filed a formal offer to stipulate to being

under disability and a motion in limine to exclude evidence of the prior conviction for

purposes of the weapons charge.

       {¶ 6} A jury trial commenced on October 31, 2016. Prior to selecting the jury,

the trial court again denied the stipulation and motion and reiterated its decision to

permit the state to present evidence of appellant's prior conviction. During trial, the

state admitted into evidence a copy of appellant's 2005 conviction, along with a copy of

the four-count, seven-page indictment which included several offenses appellant was

never convicted of. The jury found appellant guilty as charged. By judgment entry filed

December 6, 2016, the trial court sentenced appellant to an aggregate term of six years

in prison.

       {¶ 7} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                           I

       {¶ 8} "THE TRIAL COURT ERRED IN REFUSING TO ACCEPT MR.

OVERTON'S OFFER TO STIPULATE TO BEING UNDER DISABILITY AND INSTEAD

ADMITTING EVIDENCE OF HIS PREVIOUS CONVICTION AND INDICTMENT, THE

PROBATIVE VALUE OF WHICH WAS SUBSTANTIALLY OUTWEIGHED BY THE

DANGER OF UNFAIR PREJUDICE."

                                           II

       {¶ 9} "MR.   OVERTON       WAS     DENIED      EFFECTIVE     ASSISTANCE      OF

COUNSEL IF HIS OBJECTION TO HIS 1995 (SIC) CONVICTION AND INDICTMENT

WAS NOT PROPERLY MADE."
Stark County, Case No. 2016CA00224                                                     4


                                            III

      {¶ 10} "THE JURY'S VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT

OF THE EVIDENCE BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF

CONSTRUCTIVE POSSESSION OF THE DRUGS OR GUN."

                                             I

      {¶ 11} In his first assignment of error, appellant claims the trial court erred in

denying his offer to stipulate to being under disability and instead admitted evidence of

his prior conviction and indictment. We agree.

      {¶ 12} Appellant was convicted of having weapons under disability in violation of

R.C. 2923.13(A)(3) which states the following:



             (A) Unless relieved from disability under operation of law or legal

      process, no person shall knowingly acquire, have, carry, or use any

      firearm or dangerous ordnance, if any of the following apply:

             (3) The person is under indictment for or has been convicted of any

      felony offense involving the illegal possession, use, sale, administration,

      distribution, or trafficking in any drug of abuse or has been adjudicated a

      delinquent child for the commission of an offense that, if committed by an

      adult, would have been a felony offense involving the illegal possession,

      use, sale, administration, distribution, or trafficking in any drug of abuse.



      {¶ 13} On October 24, 2016, appellant filed an offer to stipulate "that on May 9,

2016, defendant was a person 'under disability' for purposes of Ohio Revised Code §
Stark County, Case No. 2016CA00224                                                       5


2923.13." On same date, appellant filed a motion in limine to exclude evidence of his

2005 conviction for trafficking in cocaine. On the morning of trial, the trial court denied

the stipulation and motion as follows (T. at 9):



              As I had indicated previously, it's the Court's position that the State

       is not required to be prevented, necessarily, from admitting the prior

       conviction in the form of a judgment entry.       I understand that it's the

       Defense's position that you have agreed to stipulate to the prior conviction,

       but it is - - it remains the Court's position that that decision, as it is an

       element of the offense, that the State is permitted to prove that element.



       {¶ 14} The trial court stated it would provide to the jury a limiting instruction on

the use of the prior conviction. T. at 10, 13.

       {¶ 15} At the conclusion of the evidence, the following exchange occurred

between counsel and the trial court (T. at 375-376):



              MS. STARRETT [PROSECUTOR]: Okay. State's Exhibit 1 will be -

              THE COURT: I have not seen 1, so I just need to see 1. That's the

       only one - -

              MS. STARRETT: That would be the prior conviction that defense

       has stipulated to the authenticity of.

              THE COURT: Have you all seen the copy that is being submitted?

              MR. COCOVES [DEFENSE COUNSEL]: Yes.
Stark County, Case No. 2016CA00224                                                      6


              THE COURT: And no objection?

              MR. COCOVES: No.

              THE COURT: Okay.

              ***

              THE COURT: All right. Let me hold on. 1 will be admitted.



       {¶ 16} State's Exhibit 1 not only included the judgment entry of appellant's 2005

prior conviction, but also the four-count seven-page indictment "which included several

charges for which he was never convicted – including the destruction of evidence,

corrupt activity, and having a gun." Appellant's Brief at 10.

       {¶ 17} We note the admission or exclusion of evidence lies in the trial court's

sound discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d

528; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In order to find an

abuse of that discretion, we must determine the trial court's decision was unreasonable,

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v.

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

       {¶ 18} Evid.R. 403(A) states: "Although relevant, evidence is not admissible if its

probative value is substantially outweighed by the danger of unfair prejudice, of

confusion of the issues, or of misleading the jury."

       {¶ 19} Appellant argues the admission of the judgment entry of his prior

conviction and the four-count seven-page indictment constitutes unfair prejudice. In

support of his arguments, appellant cites the recent Supreme Court of Ohio's decision in
Stark County, Case No. 2016CA00224                                                      7

State v. Creech, ___ Ohio St.3d ___, 2016-Ohio-8440, ___ N.E.3d ___. The Creech

court at ¶ 36 explained "undue prejudice" as follows:



             " 'Unfair prejudice is that quality of evidence which might result in

      an improper basis for a jury decision.       Consequently, if the evidence

      arouses the jury's emotional sympathies, evokes a sense of horror, or

      appeals to an instinct to punish, the evidence may be unfairly prejudicial.' "

      Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890

      (2001), quoting Weissenberger, Ohio Evidence, Section 403.3, at 85–87

      (2000).



      {¶ 20} The Creech decision was filed on December 29, 2016. We note the trial

court did not have the benefit of the decision for the October 31, 2016 trial, although it

was aware of the appellate decision out of the Seventh District. However, because "[a]

new judicial ruling may be applied only to cases that are pending on the announcement

date" and appellant's appeal was pending on December 29, 2016, we find the Creech

decision to be applicable to this case. State v. Evans, 32 Ohio St.2d 185, 186, 291

N.E.2d 466 (1972).

      {¶ 21} In Creech, the defendant was charged with three weapons charges for

three different disabilities. The defendant offered to stipulate to any one of the three

disabilities since only one weapon and one event was involved. The trial court denied

the offer of stipulation, finding the state was not required to elect a disability or even

accept a stipulation. Evidence of all three disabilities was presented to the jury via
Stark County, Case No. 2016CA00224                                                        8


testimony and exhibits, and was mentioned during opening statement and closing

argument. The trial court gave the jury a limiting instruction. The jury found appellant

guilty of all three weapons counts and appellant appealed. On appeal, our brethren

from the Seventh District in State v. Creech, 7th Dist. Jefferson No. 13 JE 41, 2014-

Ohio-4004, 18 N.E.3d 523, reversed the convictions, adopting the reasoning used by

the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct.

644, 136 L.Ed.2d 574 (1977). The Supreme Court of Ohio affirmed the decision, also

relying heavily on Old Chief.

          {¶ 22} Old Chief involved nearly identical issues as in Creech and the case sub

judice.     In Old Chief, the defendant was charged with various charges involving a

firearm, including assault with a dangerous weapon, as well as a violation of 18 U.S.C.

922(g)(1) (the federal version of Ohio's R.C. 2923.13) which prohibits possession of a

firearm by anyone "who has been convicted in any court of, a crime punishable by

imprisonment for a term exceeding one year." The defendant offered to stipulate to the

fact that he previously had been convicted of a crime punishable by imprisonment

exceeding one year. He argued by so stipulating, evidence of the name and nature of

the offense would be inadmissible under Fed.R.Evid. 403 because the probative value

of that evidence would be substantially outweighed by the danger of unfair prejudice.

The trial court disagreed and permitted the government to present evidence of the

defendant's prior conviction. The jury was made aware that the defendant had been

convicted of a prior assault resulting in serious bodily injury to the victim, and found the

defendant guilty as charged.
Stark County, Case No. 2016CA00224                                                   9


      {¶ 23} After discussing unfair prejudice, propensity evidence, balancing the

evidence, and the government's right to present its case, the United States Supreme

Court held the following at 191:



             Given these peculiarities of the element of felony-convict status and

      of admissions and the like when used to prove it, there is no cognizable

      difference between the evidentiary significance of an admission and of the

      legitimately probative component of the official record the prosecution

      would prefer to place in evidence. For purposes of the Rule 403 weighing

      of the probative against the prejudicial, the functions of the competing

      evidence are distinguishable only by the risk inherent in the one and

      wholly absent from the other. In this case, as in any other in which the

      prior conviction is for an offense likely to support conviction on some

      improper ground, the only reasonable conclusion was that the risk of

      unfair prejudice did substantially outweigh the discounted probative value

      of the record of conviction, and it was an abuse of discretion to admit the

      record when an admission was available.



      {¶ 24} The Creech court painstakingly combed through the Old Chief decision,

adopted its reasoning in Ohio, and concluded the following at ¶ 40:



             Pursuant to Evid.R. 403, in a case alleging a violation of R.C.

      2923.13, when the name or nature of a prior conviction or indictment
Stark County, Case No. 2016CA00224                                                      10


      raises the risk of a jury verdict influenced by improper considerations, a

      trial court abuses its discretion when it refuses a defendant's offer to

      stipulate to the fact of the prior conviction or indictment and instead admits

      into evidence the full record of the prior judgment or indictment when the

      sole purpose of the evidence is to prove the element of the defendant's

      prior conviction or indictment.



      {¶ 25} The Creech court at ¶ 39 also determined the limiting instruction "was

insufficient to overcome the admission of inadmissible evidence of Creech's prior

convictions and indictment. '[I]f there would be danger of unfair prejudice, evidence

ordinarily admissible for a limited purpose should not be admitted even with a limiting

instruction.' 1980 Staff Notes, Evid.R. 105."

      {¶ 26} In the case sub judice, the sole purpose of admitting the evidence (State's

Exhibit 1) was to prove the element of appellant's prior conviction and indictment, as the

prosecutor agreed not to bring up appellant's prior conviction during the trial other than

stipulating to the authenticity of the exhibit. T. at 10-11. In this case wherein appellant

was charged with the weapons count and two counts of possession of drugs, the jury

was presented with a judgment entry showing appellant's 2005 conviction for two counts

of trafficking in cocaine and a four-count seven-page indictment containing specific

allegations of drug offenses, corrupt activity, and having a firearm, not all of which

appellant was convicted of. Not only was the jury informed of the fact that appellant had

a prior conviction for trafficking in drugs, the jury was informed he was convicted of two

counts and the drug involved was cocaine.
Stark County, Case No. 2016CA00224                                                      11

      {¶ 27} In Creech, the defendant was not charged with any drug offenses,

however two of the three weapons offenses included disabilities involving drugs. The

Creech court reasoned the following at ¶ 37:



             Likewise,    setting   out   Creech's   felony   drug   offenses   with

      specificity—that he had been convicted of possessing crack cocaine and

      had been charged with two counts of trafficking in cocaine (including one

      count of trafficking near a school)—also was potentially prejudicial, in that

      it put before the jury the name and nature of the drug offenses rather than

      the generalized description of the disability as set forth in the statute.

      Especially damaging is the indictment submitted to the jury, which alleges

      that Creech trafficked cocaine and that he had engaged in that felonious

      activity in the recent past—on one occasion, near a school. (Emphasis

      added.)



      {¶ 28} As in Creech, the indictment submitted to the jury in this case was

especially damaging. Given the analysis and holding of Creech, we find "the name or

nature of a prior conviction or indictment raises the risk of a jury verdict influenced by

improper considerations" in this case, and therefore find the trial court abused its

discretion in denying appellant's offer to stipulate to being under disability and instead

admitted evidence of his prior conviction and multi-page indictment.1



1Appellee argues because defense counsel did not specifically object to the admission
of the judgment entry and indictment of his 2005 conviction and in fact stipulated to their
authenticity, appellant must show plain error under Crim.R. 52(B). Even under a plain
Stark County, Case No. 2016CA00224                                                       12

       {¶ 29} In adopting the reasoning of Old Chief, the Creech court acknowledged

"the differences between R.C. 2923.13(A) and 18 U.S.C. 922(g)(1) in applying the

holding to the Ohio statute." Creech at ¶ 35. The Creech court went on to reason the

following:



              What mattered for purposes of the federal statute is that the

       defendant had been sentenced to a crime punishable with a sentence of

       more than a year in prison. The General Assembly in R.C. 2923.13 made

       some distinctions in determining the classes of crimes that should bar a

       convict from possessing a gun, but the classes are still broad.          What

       matters to the General Assembly—and an element that the state must

       prove—is that the crime the defendant was convicted of was either a

       "felony offense of violence" or a "felony offense involving the illegal

       possession, use, sale, administration, distribution, or trafficking in any drug

       of abuse." R.C. 2923.13(A)(2) and (3).        In regard to R.C. 2923.13, a

       stipulation or admission concerning the status element would necessarily

       include the fact that the defendant was under indictment or had previously

       been convicted of a crime falling within those broad categories.



       {¶ 30} Upon remand, the trial court should accept appellant's stipulation to be

under the generalized description of the disability under R.C. 2923.13(A)(3), that he



error analysis, we find unfair prejudice to appellant constituting "a manifest miscarriage
of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of
the syllabus.
Stark County, Case No. 2016CA00224                                                        13


"has been convicted of any felony offense involving the illegal possession, use, sale,

administration, distribution, or trafficking in any drug of abuse" if he chooses to so

stipulate.   The mere words "under disability" is not sufficient without the added

generalized description of the disability of R.C. 2923.13(A)(3) as set forth in Creech.

       {¶ 31} Assignment of Error I is granted. Assignments of Error II and III are moot.

       {¶ 32} The convictions and sentence of the Court of Common Pleas of Stark

County, Ohio is hereby vacated, and the matter is remanded to said court for further

proceedings consistent with this opinion.

By Wise, Earle, J.

Gwin, P.J. and

Baldwin, J. concur.




EEW/sg 925
