State v. Velez
Decision Date | 13 March 1991 |
Docket Number | No. 4-89-20,4-89-20 |
Citation | 72 Ohio App.3d 836,596 N.E.2d 545 |
Parties | The STATE of Ohio, Appellee, v. VELEZ, Appellant. |
Court | Ohio Court of Appeals |
Peter R. Seibel, Pros. Atty., and Morris J. Murray, Defiance, for appellee.
Kay Wildermuth, Defiance, for appellant.
This is an appeal from the judgment of the Court of Common Pleas of Defiance County entered upon a jury's verdict finding appellant, Domingo Velez, Jr., guilty of aggravated trafficking in drugs and permitting drug abuse with a prior drug abuse conviction. From this judgment, appellant asserts three assignments of error. The first assignment of error is:
"The trial court erred to the prejudice of defendant-appellant in taking judicial notice of defendant-appellant's prior conviction."
At trial, in compliance with R.C. 2945.75(B), evidence of appellant's prior conviction was presented in the form of testimony of a police officer involved in the prior conviction identifying the appellant as the defendant in the prior case and the judgment entry of the prior conviction was also admitted into evidence. The text of the judgment entry of the prior conviction in its entirety reads as follows:
While the testimony of the officer involved in the prior conviction and the judgment entry from the prior conviction were properly introduced, the judgment entry set forth above, reciting only a plea of guilty to enumerated counts of an indictment, does not indicate the conviction was for a drug abuse offense and such cannot be ascertained without resort to extrinsic matter. Upon motion by the state and over the objection of appellant, the trial court took judicial notice of the fact that the prior judgment entry was for a conviction of drug trafficking. The trial court instructed the jury as follows:
Evid.R. 201(B) sets forth the kind of facts the trial court may notice judicially. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Evid.R. 201(B). The fact that the prior judgment entry was for a felony drug abuse offense does not appear to fall within either classification of Evid.R. 201(B). Even though both proceedings were before the same trial court, "[a] trial court may not take judicial notice of prior proceedings in the court, but may only take judicial notice of prior proceedings in the immediate case." Diversified Mortgage Investors, Inc. v. Bd. of Revision (1982), 7 Ohio App.3d 157, 7 OBR 201, 454 N.E.2d 1330, paragraph two of the syllabus.
Moreover, assuming arguendo the propriety of judicial notice of the matter, the instruction given by the court does not comply with the mandate of Evid.R. 201(G) that in a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
The state is required to prove each element of the crime charged, including the specifications enhancing the penalty for the crime. The jury is the trier of...
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