State v. Hall, 54191

• Decision Date: 30 January 1989
• Docket Number: No. 54191,54191
• Citation: 57 Ohio App.3d 144,567 N.E.2d 305
• Parties: The STATE of Ohio, Appellee, v. HALL, Appellant. *
• Court: Ohio Court of Appeals

Page 144

57 Ohio App.3d 144

567 N.E.2d 305

The STATE of Ohio, Appellee, v. HALL, Appellant. ^*

No. 54191.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Jan. 30, 1989.

Syllabus by the Court

1. The denial of a motion in limine does not preserve error for purposes of appeal, absent a proper objection at trial. However, where a motion in limine is treated essentially as a motion to suppress, i.e., a hearing is held at which the testimony that is the subject of the motion is fully presented with cross-examination, any error in the trial court's ruling on the motion may be preserved for review, especially where the court informs the defendant that he may appeal the ruling should he plead no contest rather than guilty, and the defendant so pleads.

2. When a juvenile admits the allegations of a juvenile complaint, evidence of the acts which underlie the allegations is not admissible against the juvenile in a subsequent case or proceeding, except as provided in R.C. 2151.358(H).

John T. Corrigan, Pros. Atty., and James Cochran, Cleveland, for appellee.

Paul Markstrom, Rocky River, for appellant.

McMANAMON, Chief Judge.

Robert Hall, Jr. was indicted for kidnapping (R.C. 2905.01), rape (R.C. 2907.02) and aggravated robbery (R.C. 2911.01) with a gun specification. Before trial, Hall filed a motion in limine, seeking to prevent the state from introducing the testimony of two witnesses whom Hall had previously raped and robbed. These latter incidents occurred eighteen months earlier when Hall was a juvenile. The court overruled his motion after an evidentiary hearing. Hall then changed his plea to no contest, and the court found him guilty of rape, kidnapping and aggravated robbery, merging the rape and kidnapping charges upon conviction.

In two assignments of error ¹ Hall argues the court erred in overruling his motion in limine. Because we find both assignments to be well-taken, we reverse the judgment of the trial court and remand the cause for further proceedings.

Initially, we must determine whether Hall properly preserved his claimed errors for review. The denial of a motion in limine does not preserve error for purposes of appeal, absent a proper objection at trial. State v. Brown (1988), 38 Ohio St.3d 305, 528 N.E.2d 523, paragraph three of the syllabus; State v. Maurer (1984), 15 Ohio St.3d 239, 258-260, 15 OBR 379, 395-397, 473 N.E.2d 768, 787-788. Although such a motion is a useful technique for raising the issue of admissibility outside the presence of the jury, the court's ruling does not actually determine whether the evidence is admissible. Rather, a ruling in limine prevents a party from injecting improper evidence into the proceedings until the court is able to decide, in the context of the other evidence at trial, whether the evidence indeed is admissible. State v. Grubb (1986), 28 Ohio St.3d 199, 28 OBR 285, 503 N.E.2d 142.

A party cannot alter the interlocutory nature of a ruling in limine merely by pleading no contest to the charges and appealing the ensuing conviction. In such an event there remains no evidentiary ruling upon which error may be predicated. Matters which may be raised on appeal from a no contest plea are set forth in Crim.R. 12(H), which provides:

"Effect of plea of no contest. The plea of no contest does not preclude a defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a pretrial motion, including a pretrial motion to suppress evidence."

A "pretrial motion" is defined as "[a]ny defense, objection, or request which is capable of determination without the trial of the general issue * * *." Crim.R. 12(B). A motion to suppress evidence is such a motion, but only if the basis for exclusion is that the evidence was illegally seized. Crim.R. 12(B)(3). Where the basis is other than illegal seizure, appellate courts have held that a no contest plea after an adverse ruling in limine does not preserve any error. Columbus v. Sullivan (1982), 4 Ohio App.3d 7, 4 OBR 27, 446 N.E.2d 485; State v. Schubert (Dec. 22, 1986), Seneca App. No. 13-85-22, unreported, 1986 WL 14413; City of Columbus v. Quinn (Dec. 17, 1987), Franklin App. No. 86AP-1079, unreported, 1987 WL 28458. Nevertheless, there is authority that a plea is invalid if based upon the mistaken belief judicial review would be available. Sullivan, supra; Quinn, supra.

In view of the circumstances of the case at bar, we conclude the issue is preserved for review. The essential difference between a Crim.R. 12(B) motion and a motion in limine is that the former is capable of resolution without a full trial, while the latter requires consideration of the issue in the context of the other evidence. Thus, we agree with the results in Sullivan, Schubert and Quinn, where the appellate records consisted only of defense counsel's proffer of the excluded evidence. In those cases the trial court clearly never had the opportunity to consider the evidence in a context which would permit a determination of admissibility.

By contrast, in the case before us, all three rape victims testified at the hearing and were subject to cross-examination. Hall's juvenile parole officer appeared and provided certified copies of Hall's juvenile records, which were introduced into evidence. The parties and the court clearly regarded the proceedings as the equivalent of a suppression hearing. Indeed, during its colloquy with Hall, the trial court informed him he had preserved his right to appeal the matter by pleading no contest rather than guilty. In sum, it is apparent the evidentiary issue was fully developed and ripe for determination. Thus, while we strongly discourage the procedural strategy employed in this case, we nevertheless conclude the pertinent issues are preserved for review.

In his first assignment of error, Hall argues that R.C. 2151.358(H) forbids the state from using evidence of his juvenile rapes. When he was seventeen, Hall admitted the allegations in two juvenile complaints and was adjudged delinquent.

The statute shields juvenile offenders from the civil disabilities associated with criminal convictions, and further provides:

" * * * The disposition of a child under the judgment rendered or any evidence given in court is not admissible as evidence against the child in any other case or proceeding in any other court, except that the judgment rendered and the disposition of the child may be considered by any court only as to the matter of sentence or to the granting of probation. * * * "

The state maintains, and the trial court agreed, that the testimony from Hall's previous victims does not fall within the statutory proscription. The state argues that the challenged testimony was not "evidence given in court" since neither victim actually testified at the juvenile proceedings.

Hall relies upon State v. Bayless (1976), 48 Ohio St.2d 73, 2 O.O.3d 249, 357 N.E.2d 1035. In Bayless, the court rejected defendant's argument that R.C. 2151.358 bars the use of "other acts" evidence when the prior acts were never the subject of juvenile proceedings. The court held, at paragraph four of the syllabus:

"Evidence of acts by a defendant, which is otherwise admissible under R.C. 2945.59 and which does not constitute part of a disposition or evidence given in court, is not barred by R.C. 2151.358, even though the evidence tends to show the commission of another crime by the defendant when a juvenile."

Hall argues that in his case, unlike Bayless, the victims' testimony was "part of a disposition" because their accounts formed the basis of the juvenile charges. Hall's reliance on Bayless is misplaced. The court in that case did not determine the scope of R.C. 2151.358 but only held that in the absence of prior juvenile proceedings, the statute was inapplicable.

Admittedly, if the statute is strictly construed, the prior victims' testimony was not "evidence given in court." Moreover, the testimony was not the equivalent of a "disposition" as that term is employed in the Rules of Juvenile Procedure. Under the rules, juvenile proceedings are bifurcated into adjudicatory and dispositional hearings. Juv.R. 29 and 34. A disposition after adjudication is essentially the same as a sentence imposed after a finding of guilty in a criminal case. See R.C. 2151.355.

We conclude, however, that such a narrow construction would frustrate the clear purpose of R.C. 2151.358(H). Had Hall elected to be tried for the earlier offenses, the victims' testimony would have constituted "evidence given...