«HEADER»
HAMILTON COUNTY, OHIO
State of Ohio / : / CASE NO: «casenumber»PLAINTIFF / : / JUDGE: «judge»
-vs- / :
«DEFENDANT»
DEFENDANT / :
:
MOTION TO STIPULATE TO PRIOR CONVICTION
AND EXCLUDE ANY OTHER EVIDENCE OF DEFENDANT’S
PRIOR CONVICTIONS OR INDICTMENT
NOW COMES the Defendant, «defendant», by and through counsel, and hereby moves this Court, pursuant to State v. Creech (2016-Ohio-8440) and Old Chief v. U.S. (519 U.S. 172), to order the stipulation that the defendant, «defendant», “has been convicted of an felony offense of violence or that «he_she» has been convicted of or indicted for a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse” and exclude any other evidence of the defendant’s prior convictions or indictment. An oral hearing is requested. A memorandum in support and a proposed entry has been attached hereto.
Respectfully Submitted,______
«attorney», # «osc_number»
Attorney for Defendant
Law Office of the
Hamilton County Public Defender
«address1»
«city», «state» «zip»
«phone»
MEMORANDUM
Courts are authorized to exclude relevant evidence when its probative value is substantially outweighed by the danger of unfair prejudice (Evid.R.403). Unfair prejudice to a criminal defendant speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged (Old Chief v. U.S., 519 U.S. 172, 180). In short, unfair prejudice means an undue tendency to suggest a decision on an improper basis (Id). Propensity evidence is one such improper basis (Id).
Propensity evidence is evidence of a crime, wrong or other act to prove a person’s character in order to show on a particular occasion that the person acted in accordance with the character (Evid.R.404). Propensity evidence is not admissible (Id). Therefore, evidence of a prior conviction “is subject to analysis under Rule 403 for relative probative value and for prejudicial risk of misuse as propensity evidence” (Old Chief at 182).
In Old Chief, the U.S. Supreme Court stated that “there can be no question that evidence of the name and nature of the prior offense generally carries a risk of unfair prejudice to the defendant and that risk will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning” (Old Chief at 185). The Court further stated that probative value is measured partially by the relative scarcity of evidence on the same issue (Id). If there is an evidentiary alterative available that has substantial similar or greater probative value but is less prejudicial, the probative value of the state’s evidence must be discounted and then weighed against the danger of unfair prejudice (State v. Creech, 2016-Ohio-8440 at ¶ 22).
“In terms of probative value, a stipulation and the official record are equal” and “the distinguishing characteristic between the two types of competing evidence discounts the probative value of the official record” (Old Chief at 191). This is because the official record carries with it an inherent risk of unfair prejudice while a stipulation does not (Id). In Old Chief, the Court held that “the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available” (Id).
In State v. Creech, the Ohio Supreme Court adopted the reasoning of Old Chief and applied it to Ohio by holding that it was an abuse of discretion when the trial court:
refuses a defendant’s offer to stipulate to the fact of the prior conviction or indictment and instead admits into evidence the full record of the prior judgment or indictment when the sole purpose of the evidence is to prove the element of the defendant’s prior conviction or indictment (Creech at ¶ 40).
The court further held that a limiting instruction given to the jury “not to consider evidence to prove the character of the defendant in order to show that «he_she» acted in conformity or accordance with that character was insufficient to overcome the admission of inadmissible evidence of . . . prior convictions and indictment” (Id at ¶ 39). The court remanded the case back to the trial court and required the trial court to accept the Defendant’s stipulation (Id at ¶ 41).
In the present action, Defendant, «defendant», has been charged with Having Weapons While Under Disability in violation of R.C. 2923.13(A)(3). An essential element of this charge is that the Defendant “is under indictment for or has been convicted of any felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse . . . (R.C. 2923.13(A)(3)). The sole purpose of admitting the defendant’s full record of prior convictions or indictment would be to prove the above referenced element. The defendant’s proffered stipulation has the same probative value of his record of conviction, but does not carry with it the inherent risk of unfair prejudice.
For the above reasons, Defendant requests that this Court to accept the proffered stipulation and exclude from evidence the defendant’s full record of prior convictions or indictment.
Respectfully Submitted,______
«attorney», # «osc_number»
Attorney for Defendant
Law Office of the
Hamilton County Public Defender
«address1»
«city», «state» «zip»
«phone»
CERTIFICATE OF SERVICE
«certificate_of_service_text»
______«attorneyS»«osc_numberS»
Attorney for Defendant
«HEADER»
HAMILTON COUNTY, OHIO
State of Ohio / : / CASE NO: «casenumber»PLAINTIFF / : / JUDGE: «judge»
-vs- / :
«DEFENDANT»
DEFENDANT / :
:
ENTRY GRANTING STIPULATION TO PRIOR CONVICTION
IT IS hereby ordered, for good cause shown and pursuant to State v. Creech, the Defendant’s motion is granted and it is hereby by stipulated that the Defendant, «defendant», has been convicted of a felony offense of violence or that he has been convicted of or indicted for a felony offense involving the illegal possession, use, sale, administration, distribution, or trafficking in any drug of abuse. It is further ordered that the Defendant, «defendant», full record of prior judgment or indictments shall be excluded from admission into evidence at the trial of this matter. It is further ordered:
______
______
JUDGE
______
DATE
Motion_Stipulate_Prior_Conv