State v. Gordon

• Decision Date: 10 November 1971
• Docket Number: No. 71-264,71-264
• Citation: 28 Ohio St.2d 45,57 O.O.2d 180,276 N.E.2d 243
• Parties: , 57 O.O.2d 180 The STATE of Ohio, Appellant, v. GORDON, Appellee.
• Court: Ohio Supreme Court

Page 45

28 Ohio St.2d 45

276 N.E.2d 243, 57 O.O.2d 180

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

No. 71-264.

Supreme Court of Ohio.

Nov. 10, 1971.

Syllabus by the Court

1. In order for the 'second offense' penalty of R.C. 4549.99 to be imposed for violation of R.C. 4549.04(B) (operating a motor vehicle without the owner's consent) it is necessary that the indictment charge a prior offense as an element of the crime and that such a prior offense be proved as a matter of fact.

2. Generally, an appellate court will not consider any error which counsel for a party complaining of the trial court's judgment could have called but did not call to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. (Paragraph one of the syllabus of State v. Lancaster, 25 Ohio St.2d 83, 267 N.E.2d 291, approved and followed.)

3. It is not reversible error to read to the jury an indictment which contains the averment of a prior conviction or to place such indictment in the jury's possession during its deliberations where the prior conviction is a factual element of the crime to be proved.

On April 8, 1968, Ralph Gordon was convicted and sentenced for a violation of R.C. 4549.04(B), operating a motor vehicle without the owner's consent. On October 15, 1969, he was indicted under the same section, and for 'second offense' under R.C. 4549.99 which states that 'for each subsequent offense such person shall be imprisoned not less than one nor more than twenty years.' The subsequent offense penalty is considerably harsher that the first offense penalty.

The issue of 'second offense' was submitted to the jury, along with the question of guilt or innocence on the current 'operating' charge, without limiting instructions from the court on the use of prior convictions and without defense counsel's objection or request for such instructions.

The jury found the fact of prior conviction true and also found the defendant guilty of the second 'operating' charge. A motion for a new trial was overruled.

Upon appeal, the Court of Appeals (26 Ohio App.2d 270, 271 N.E.2d 300) reversed the judgment of the trial court and ordered a new trial, holding that it was not necessary to submit the issue of the prior conviction to the jury where the fact of such conviction was relevant only for the purpose of enhanced punishment, and where such conviction was 'not an element of the offense for which the accused (was) being tried.' The court found also that the cumulative effect of the prosecutor's statement to the jury regarding the prior conviction, the sending and reading of the indictment (containing the 'second offense' averments) to the jury, and the failure of the trial court to instruct the jury as to the limited purpose for which such prior conviction should be considered constituted error prejudicial to the defendant.

The cause is before this court pursuant to our allowance of the prosecutor's motion for leave to appeal.

George C. Smith, Pros. Atty., and David H. Bodiker, Columbus, for appellant.

Donald B. Ruben, Columbus, for appellee.

HERBERT, Justice.

Before a greater punishment for a second or subsequent offense may be inflicted in this state, it is essential that the indictment or information aver that the offense charged is a second or subsequent offense. Larney v. Cleveland (1878), 34 Ohio St. 599; Columbus v. Carson (1927), 23 Ohio App. 299, 155 N.E. 498; State v. Simpson (1969), 20 Ohio App.2d 336, 254 N.E.2d 23; State v. Gordon, supra 26 Ohio App.2d 270, 272, 271 N.E.2d 300.

While the instant case presents no challenge to that proposition, the court below was 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.' State v. Gordon, supra, at page 272, 271 N.E.2d at page 302.

In Byler v. State (1927), 26 Ohio App. 329, 333, 157 N.E. 421, 422, the court stated:

'It must and will, no doubt, be conceded that a former conviction enters into, is a part of, and one of the elements of, the alleged second offense.

'If that be true, then, to convict of a second offense, the first offense must be made out by that degree of evidence required by law. * * *'

In State v. Bowman (1962), 116 Ohio App. 285, 287, 187 N.E.2d 627, 629, it was noted that:

'* * * A necessary element of the charge (of second offense) is that appellant has committed a second offense. There can be no second offense without a first offense. * * *

'* * * The prior conviction, being a necessary element of the charge, must, of course, be established by the evidence. * * *'

At page 337 of 20 Ohio App.2d, at pages 24, 25, of 254 N.E.2d in the opinion in State v. Simpson, supra, Judge Younger observed:

"Having previously been convicted' is now a necessary element of the new offense and must be proved beyond a reasonable doubt by the state. This includes the question of identity. * * *

'* * *

'It is not sufficient that at the time of sentencing the prosecutor should suggest to the court that this is a second offense and that enhanced punishment must be inflicted. That would make the prosecution for one offense with the penalty being imposed for another offense * * *.'

An analogous situation was presented to this court in Blackburn v. State (1893), 50 Ohio St. 428, 36 N.E. 18. That case involved an interpretation of the Habitual Criminal Act of 1885 (82 Ohio Laws 236, 237), which, as an early predecessor of our current habitual criminal law, was silent on the question of the role of a jury. There, we said that 'to authorize a sentence of imprisonment for life under that statute, the indictment should allege that the defendant had been previously twice convicted, sentenced, and imprisoned in some penal institution for felonies, describing each separately. In such case the grand jury, at the time it finds an indictment for the third felony, is authorized, if the evidence warrants it, to include in the indictment the facts that the accused had been so convicted, sentenced, and imprisoned; and if the trial jury, in their verdict, find these facts to be true, and also convict him of the third felony, the court, after passing sentence of imprisonment for a specific term, as prescribed by the statute, should proceed to sentence him to imprisonment for his natural life.' (Emphasis added.) Blackburn v. State, supra, at page 429, 36 N.E. at page 19.

We reach the same result here. The defendant faces a possible felony conviction for a second offense, while a first offense is punishable only as a misdemeanor. The state must be put to its proof regarding the identity of the accused in the prior offense and must demonstrate the fact of such prior offense beyond a reasonable doubt. The jury must then find that fact to be established and also convict the defendant of the second violation, in order for the court to impose the greater punishment.

There is a considerable body of case law from other jurisdictions that parallels our conclusion here.

'It is a general rule that on a charge of a 'second or subsequent' offense, the question of a prior conviction is an essential element of the offense charged, and is an issue of fact to be determined by a jury.' Sparkman v. State Prison Custodian (1944), 154 Fla. 688, 692, 18 So.2d 772, 774. See, also, State v. Fernandez (Fla.App.1963), 156 So.2d 400; State v. Aime (1923), 62 Utah 476, 220 P. 704; Winston v. State (1938), 186 Ga. 573, 198 S.E. 667; State v. Findling (1913), 123 Minn. 413, 144 N.W. 142; State v. Beaudoin (1932), 131 Me. 31, 158 A. 863; Cook v. Smith (D.C.1969), 303 F.Supp. 90; Massey v. United States (C.C.A. 8, 1922), 281 F. 293.

This is not to say that other views do not exist. In Dye v. Skeen (1950), 135 W.Va. 90, 62 S.E.2d 681, for instance, it was held that it was a matter of law, not fact, whether defendant had been twice before convicted within the meaning of the West Virginia habitual criminal statute.

However, in Spencer v. Texas (1967), 385 U.S. 554, 560, 87 S.Ct. 648, 651, 652, 17 L.Ed.2d 606, the United States Supreme Court stated:

'Nor is it contended that it is unconstitutional for the jury to assess the punishment to be meted out to a defendant in a capital or other criminal case, or to make findings as to whether there was or was not a prior conviction even though enhanced punishment is left to be imposed by the judge. The States have always been given wide leeway in dividing responsibility between judge and jury in criminal cases. Hallinger v. Davis, 146 U.S. 314, 13 S.Ct. 105, 36 L.Ed. 986; Maxwell v. Dow, 176 U.S. 581, 20 S.Ct. 448, 44 L.Ed. 597; cf. Chandler v. Fretag, 348 U.S. 3, 75 S.Ct. 1, 99 L.Ed. 4; Giaccio v. Pennsylvania, 382 U.S. 399, 405, n. 8, 86 S.Ct. 518, 15 L.Ed.2d 447.' (Emphasis added.)

Appellee has also urged that if the jury is to decide the question of prior conviction, it should not receive any allegation or evidence of the prior conviction until it has returned a...