State v. Gordon

• Citation: 271 N.E.2d 300,26 Ohio App.2d 270
• Parties: , 55 O.O.2d 421 The STATE of Ohio, Appellee, v. GORDON, Appellant.
• Decision Date: 26 January 1971
• Court: United States Court of Appeals (Ohio)

Page 270

26 Ohio App.2d 270

271 N.E.2d 300, 55 O.O.2d 421

The STATE of Ohio, Appellee, v. GORDON, Appellant.

Court of Appeals of Ohio, Tenth District, Franklin County.

Jan. 26, 1971.

Syllabus by the Court

1. It is not necessary to submit the issue of a prior conviction to the jury in a situation where the fact of a prior conviction for the identical type of offenses relevant only for the purpose of enhanced punishment for the subsequent offense and is not an element of the offense for which the accused is being tried. Under such circumstances, such issue should be submitted to the court for determination in connection with punishment rather than to the jury.

2. Where a prosecuting attorney in his opening statement improperly and repeatedly refers to a prior conviction and prior imprisonment for an identical type of offense, the indictment containing the allegations of prior conviction is read twice to the jury and is sent with the exhibits to the jury, evidence of the prior conviction is admitted, the trial court neither submits the issue of prior conviction to the jury nor explains the purpose for which such evidence is admitted, and court-appointed defense counsel does not request such instruction although calling to the attention of the court the limited purpose for which evidence is admissible, there is prejudicial error necessitating a new trial.

C. Howard Johnson, Prosecuting Atty., and David H. Bodiker, Columbus, for appellee.

Donald B Ruben, Columbus, for appellant.

WHITESIDE, Judge.

This is an appeal upon questions of law from a judgment of the Court of Common Pleas for Franklin County wherein the defendant, appellant herein, was found guilty of a second offense of operating a motor vehicle without the owner's consent.

The defendant raises four assignments of error, all of which relate to the repeated injection into the record of the fact that the appellant was previously convicted of an identical offense. The first assignment of error is predicated upon alleged misconduct of the assistant prosecuting attorney in his opening statement. The second assignment of error is predicated upon the reading of the indictment to the jury and submitting the indictment to the jury. The third assignment of error is predicated upon the failure of the trial court to instruct the jury as to the proper use to be made of the evidence of a prior conviction, and the fourth assignment of error is that defendant's defense attorney, appointed by the court, was ineffective because of his failure to insist that the jury be so instructed.

The repeated injection into the record of the fact of defendant's prior conviction was apparently predicated upon the assumption by the assistant prosecuting attorney, defense attorney, and the trial court that this was an issue to be determined by the jury. This is apparently a common assumption. In 4 Ohio Jury Instructions 219, Verdicts, Section 413.35, the following prefatory comment is made:

'Several statutes impose a greater penalty for a second conviction for the same offense. In such situations the indictment must allege and the jury must return a finding on the prior conviction.'

Section 413.35 also contains a concluding comment as follows:

'There is no reason to submit the issue of the prior offense if the defendant stipulates its existence prior to trial and waives its submission to the jury.

'The Ohio rule requiring the jury to determine the issue of a prior conviction is prejudicial to the defendant. A fairer procedure would be to submit the evidence on the issue of a prior conviction to the same jury or, better, to the court after the verdict on the current charge. Usually it is a matter of law and relates to the punishment.'

The Supreme Court of Ohio has specifically held that it is necessary to aver in the indictment the fact that the offense charged is a second offense in order to justify the greater punishment for a second or subsequent violation. See Larney v. City of Cleveland (1878), 34 Ohio St. 599. However, this court has been unable to find any requirement that the issue of prior conviction be submitted to the jury in a situation such as this, where the fact of a prior conviction for the identical type of offense is relevant only for the purpose of enhanced punishment for the subsequent offense and is not an element of the offense for which the accused is being tried. On the contrary, the question of punishment is ordinarily one solely for the court and, accordingly, those issues bearing solely upon the question of punishment should be submitted to the court for determination rather than to the jury. This court concurs with the comment in Ohio Jury Instructions that submitting the issue of prior conviction to the jury is prejudicial to a defendant being tried for a later offense. This is especially true where the jury is not instructed as to the limited purpose for which the evidence bearing upon that issue may be considered.

In this case, the fact of the prior conviction was stipulated. The trial court did not submit to the jury the issue of a prior conviction, nor did the trial court explain, in any manner, to the jury the reason why such evidence was admitted, or place any limitation upon the use of such evidence by the jury. Defense counsel did object to the reading of the stipulation to the jury but the objection was overruled. However, it does not clearly appear from the record that the stipulation was in fact read to the jury.

During opening statements, the assistant prosecuting attorney stated:

'Now, the evidence will show that this is not the first time that Ralph Gordon has been involved in this type of offense. The evidence will come in, a prior case in this very Court, Case No. 45,044, the Defendant was convicted after jury trial of operating a motor vehicle without the owner's consent. He was sent to the Ohio Reformatory.'

The following dialogue then took place:

'Mr. Beatty: I'm going to object to this, your honor. I dont't thing this is proper. Counsel, excuse me for interrupting you in opening statements like this, but, now, certainly, I think he has every right to make statements about what the evidence is going to show pertaining to this man being found guilty in a prior trial, Your Honor. I've told the jury the man was guilty. But, I mean, this business about the man being sent to Mansfield-

'The Court: Objection sustained. The jury will disregard.

'Mr. Pelteson: This I necessarily have to put in my opening statement because, ladies and gentlemen, the Grand Jury in the September Term of this year did find this indictment, and I'll read it to you:'

The assistant prosecuting attorney then proceeded to read the indictment to the jury. He then continued as follows:

'Now, they in turn were confronted with this as the Grand Jury because-the judge will explain the law to you. There is a law known as Second Offense Operating, which is a little different from First Offense Operating. So this is the only reason for my comment about the defendant. I don't mean to be unfair to him. I'm expected to prove some of this, ladies and gentlemen. That's my responsibility as a sworn public official.'

The assistant prosecuting attorney further commented upon the prior conviction and prompted a retort as is indicated by the following:

'I don't wish to comment about the prior offense, but we have heard that this occurred in early 1968.

'On May 3, 1968, the evidence will show that the...