State v. Rivera

• Decision Date: 15 August 1994
• Docket Number: No. 93-A-1833,93-A-1833
• Citation: 99 Ohio App.3d 325,650 N.E.2d 906
• Parties: The STATE of Ohio, Appellee, v. RIVERA, Appellant. *
• Court: Ohio Court of Appeals

Page 325

99 Ohio App.3d 325

650 N.E.2d 906

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

No. 93-A-1833.

Court of Appeals of Ohio Eleventh District, Ashtabula County.

Decided Aug. 15, 1994.

Gregory J. Brown, Ashtabula County Pros. Atty., and Terrence J. Jones, Asst. Pros. Atty., Jefferson, for appellee.

Jonathan W. Winer, Rome, for appellant.

NADER, Judge.

This is an appeal from a conviction of drug abuse, in violation of R.C. 2925.11(A), entered in the Ashtabula County Court of Common Pleas.

On January 15, 1993, appellant, Edgardo S. Rivera, was arrested for a violation of R.C. 2925.11(A), drug abuse. Appellant was arraigned in the Ashtabula Municipal Court on the same date, a plea of not guilty was entered, and a $10,000 cash bond was set. On January 26, 1993, a preliminary hearing was held. The trial court filed a judgment entry, following the preliminary hearing, which ordered that the cash bond be continued and that the case be bound over to the grand jury.

On February 3, 1993, appellant was indicted by the grand jury on one count of drug abuse in violation of R.C. 2925.11(A). On February 5, 1993, appellant was arraigned in the Ashtabula County Court of Common Pleas. The court ordered that bond be set at $5,000 personal recognizance. Appellant entered a plea of not guilty and was subsequently released on bond.

Appellant filed a motion to suppress his oral statement on July 6, 1993. A hearing on the motion to suppress was held on September 15, 1993. On September 22, 1993, the trial court entered an order granting appellant's motion for the reason that appellant's limited knowledge of English rendered questionable the effectiveness of his Miranda warnings, which were administered in English. Appellant subsequently filed a request for an interpreter, which was granted by the trial court in an entry filed October 5, 1993.

On October 5, 1993, the matter went to trial before a jury. The presence of an interpreter was noted on the record. On October 6, 1993, the jury returned a guilty verdict on the charge of drug abuse. The jury also found that appellant had previously been convicted of a drug-abuse offense. On the same date, the trial court entered judgment in accordance with the verdict.

On October 7, 1993, appellant appeared before the trial court for sentencing. Appellant's interpreter was present for these proceedings. The trial court entered an order on that date, sentencing appellant to two years of incarceration and suspending the mandatory fine due to appellant's indigency. On November 4, 1993, appellant filed a notice of appeal, assigning the following as error:

"1. The trial court erred in denying defendant's motion for a new trial after inadmissible statements were made in the presence of the jury by an arresting officer concerning the defendant's alleged possession of a weapon during a prior, unrelated arrest.

"2. Admission of evidence of defendant's prior drug conviction denied defendant a fair trial and substantially prejudiced the jury.

"3. The defendant was denied his right to confront witnesses and denied effective assistance of counsel by the interpreter's failure to fully translate the trial, and absence during all but five minutes of defense counsel's trial preparation time."

In appellant's first assignment of error, it is argued that the trial court erred in denying appellant's request for a mistrial. Appellant's request was predicated upon the unsolicited statement of a prosecution witness that related to an allegation that appellant was armed during a previous encounter with law enforcement officials.

It has been held that:

"A mistrial will be declared where there is a 'manifest necessity to do so,' or in order to 'serve the ends of public justice.' State v. Abboud (1983), 13 Ohio App.3d 62, 13 OBR 66, 468 N.E.2d 155. The determination of whether a mistrial is warranted rests within the sound discretion of the trial court. Id." State v. Fenton (1990), 68 Ohio App.3d 412, 434, 588 N.E.2d 951, 965.

The phrase "abuse of discretion" " 'connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. * * *' State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. * * * " State v. Montgomery (1991), 61 Ohio St.3d 410, 413, 575 N.E.2d 167, 171.

The portion of testimony in question is as follows:

"Q. Okay, what was the plan at this point in time among you three law enforcement officers?

"A. We were going to wait for Mr. Rivera to leave the Speedway as it was advised to approach with caution. Last time he was observed with a nine millimeter."

Upon appellant's objection, the trial court made the following statement:

"The court: The objection's sustained. That will be stricken. Members of the jury, you are instructed to disregard it and, Mr. Jones, if we need to take a recess now for you to caution this witness, we can do that."

Upon appellant's request, the trial court gave a second limiting instruction:

"The court: All right, we'll have the record show that all the members of the jury panel have now been returned to the courtroom.

"Before we go any further, ladies and gentlemen, again, just prior to taking this recess and in response to a question, in fact, a nonresponsive answer was given and this officer made some reference to apparently some prior time that this defendant reportedly may have been in possession of [a] nine millimeter weapon of some kind.

"I'm instructing you to disregard that. I have stricken that testimony from the record. It's not relevant to any proceeding involving this case. In fact, there is no evidence that this defendant did, at this time, or ever at any time have a weapon and so I am instructing you to disregard that testimony. You may not consider it at all. All right, Mr. Jones."

In light of the extensive limiting instructions given to the jury in response to a single potentially prejudicial statement, we hold that the trial court did not abuse its discretion in determining that there was no manifest necessity to declare a mistrial. Appellant's first assignment of error is meritless.

In appellant's second assignment of error, it is argued that the trial court erred in admitting evidence of appellant's prior drug conviction, denying appellant a fair trial and prejudicing the jury. During appellant's trial, counsel stipulated to the existence of a prior drug conviction, as evidenced in State's Exhibit 1, and to the fact that the appellant was the defendant in the prior conviction.

R.C. 2925.11(C)(1) provides that anyone violating that statute is guilty of drug abuse, which constitutes a fourth degree felony, unless "the offender previously has been convicted of a drug abuse offense," in which case "drug abuse is a felony of the third degree." R.C. 2945.75 provides:

"(A) When the presence of one or more additional elements makes an offense one of more serious degree:

" * * *

"(2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.

"(B) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction."

The Supreme Court of Ohio has held that where a prior conviction elevated the degree of the offense with which the defendant was charged, it "did not simply enhance the penalty. It transformed the crime itself by increasing its degree. In such a case, the prior conviction is an essential element of the crime, and must be proved by the state." State v. Allen (1987), 29 Ohio St.3d 53, 54, 29 OBR 436, 437, 506 N.E.2d 199, 201, distinguishing State v. Gordon (1971), 28 Ohio St.2d 45, 57 O.O.2d 180, 276 N.E.2d 243.

Furthermore, the Supreme Court of Ohio has held that a two-part jury trial is not required, when evidence of a prior conviction is sought to be introduced. State v. Gordon (1971), 28 Ohio St.2d 45, 50, 57 O.O.2d 180, 183, 276 N.E.2d 243 246. Thus, the trial court did not err in admitting the certified copy of appellant's prior drug conviction.

In addition, the trial court included a limiting instruction to the jury regarding the purpose of the evidence of a prior conviction. The court stated:

" * * * This evidence may be considered for the purpose of determining whether the defendant has been previously convicted of a drug abuse offense, which is an essential element of the crime of Drug Abuse, as charged in this case. This evidence cannot be considered for any other purpose."

This limiting instruction was sufficient to counteract any potential prejudice to appellant from the admission of his prior conviction. State v. Weible (Mar. 15, 1989), Summit App. No. 13754, unreported, at 4, 1989 WL 24227; State v. Roberts (Dec. 2, 1987), Ross App. No. 1368, unreported, 1987 WL 26254.

Appellant also contends that R.C. 2945.75 conflicts with Evid.R. 403, 404 and 405.

In Roberts, supra, the court addressed appellant's concerns regarding potential conflict between R.C. 2945.75 and Evid.R. 403, which provides for the exclusion of prejudicial evidence. The court stated that Evid.R. 403 must be read in context with Evid.R. 105, which provides:

"When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request of a party, shall restrict the evidence to its proper scope and instruct the jury accordingly."

The Roberts court concluded that the trial court's limiting instruction was sufficient to "eliminate the risk of unfair prejudice to appellant." Thus, the court concluded that the probative...