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State v. Overton

Court of Appeals of Ohio, Fifth District, Stark

October 30, 2017

STATE OF OHIO Plaintiff-Appellee
v.
JONAS L. OVERTON Defendant-Appellant

         Appeal from the Court of Common Pleas, Case No. 2016CR0894

          For Plaintiff-Appellee JOHN D. FERRERO Prosecuting Attorney By: KATHLEEN O. TATARSKY Assistant Prosecuting Attorney

          For Defendant-Appellant BRADLEY R. IAMS SAMUEL J. FERRUCCIO, JR. JEFFRY V. SERRA

          Hon. W. Scott Gwin, P.J. Hon. Craig R. Baldwin, J. Hon. Earle E. Wise, Jr., J.

          OPINION

          Wise, Earle, J.

         {¶ 1} Defendant-Appellant, Jonas L. Overton, appeals his December 6, 2016 convictions and sentence in the Court of Common Pleas of Stark County, Ohio. Plaintiff-Appellee is the state of Ohio.

         FACTS AND PROCEDURAL HISTORY

         {¶ 2} Appellant was under surveillance by the FBI Safe Streets Task Force which focuses on narcotics investigations. For several weeks, appellant was observed coming and going from an apartment in Canton, Ohio. On May 9, 2016, Jackson Township police officers and the FBI task force executed a search warrant on the apartment. No one was inside the apartment at the time. During the search, police discovered drugs, a loaded firearm, a magazine for the firearm, and a receipt with appellant's name on it. Later, appellant was stopped and a key to the apartment was found in appellant's possession.

         {¶ 3} On May 17, 2016, the Stark County Grand Jury indicted appellant on two counts of possession of drugs (cocaine and heroin) in violation of R.C. 2925.11 and one count of having weapons under disability in violation of R.C. 2923.13. The weapons charge stemmed from a 2005 conviction for trafficking in cocaine.

         {¶ 4} During a pretrial held on October 20, 2016, defense counsel made an oral motion to stipulate to appellant's 2005 conviction and exclude the presentation of any evidence on the prior conviction. The trial court denied the stipulation and motion, finding because the prior conviction was an element of the weapons offense, the state would be permitted to prove the element. The trial court agreed to give the jury a limiting instruction on the use of the prior conviction.

         {¶ 5} On October 24, 2016, appellant filed a formal offer to stipulate to being under disability and a motion in limine to exclude evidence of the prior conviction for purposes of the weapons charge.

         {¶ 6} A jury trial commenced on October 31, 2016. Prior to selecting the jury, the trial court again denied the stipulation and motion and reiterated its decision to permit the state to present evidence of appellant's prior conviction. During trial, the state admitted into evidence a copy of appellant's 2005 conviction, along with a copy of the four-count, seven-page indictment which included several offenses appellant was never convicted of. The jury found appellant guilty as charged. By judgment entry filed December 6, 2016, the trial court sentenced appellant to an aggregate term of six years in prison.

         {¶ 7} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:

         I

         {¶ 8} "THE TRIAL COURT ERRED IN REFUSING TO ACCEPT MR. OVERTON'S OFFER TO STIPULATE TO BEING UNDER DISABILITY AND INSTEAD ADMITTING EVIDENCE OF HIS PREVIOUS CONVICTION AND INDICTMENT, THE PROBATIVE VALUE OF WHICH WAS SUBSTANTIALLY OUTWEIGHED BY THE DANGER OF UNFAIR PREJUDICE."

         II

         {¶ 9} "MR. OVERTON WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IF HIS OBJECTION TO HIS 1995 (SIC) CONVICTION AND INDICTMENT WAS NOT PROPERLY MADE."

          III

         {¶ 10} "THE JURY'S VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT OF THE EVIDENCE BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF ...


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