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IN THE SUPREME COURT OF OHIO

STATE 0F OHiG',

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I3efcn+I,a.t-Appallant

Case No. 12-0814OL Appeal from the 0 t'FO WCo'.mtd Corir-L of Appeals

AppeEatz District

C.A.CaseNo. Q0?1 CA01306

^R3f}RANDUM IN SUPPORT OF JURISDICTIONOFAPPELI.ANT Yt'n.vtt/1^Q.u^&Lts-aie

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DEF-VNT3A v°I'-.',PPFI.I .A1NT. PRO SE

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CLERK OF COURTSUPREME COURT OF OHIO

TABLEOF CQNTENTS

EXPLANATION OF W"HY THIS IS A CASE OF PL^^LIC OR GRE_A*TGENERAL INTEREST AND INVOLVES A SLTBSTAN? i A-CONSTITU-TiONAL QUESTION....._-_a-W - _

STATEiNtE NIT OF T-f M CASE AN-D FAC 3••5- - - ------- _

ARGUNIENT IN SUPPORT OF PROPOSITTON OF LAW. --

PROPOSITTON OF LAW: .............. .... ^---------

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CONCLUSION ......................................... -........- --. --°------------.......................... oZ3

CERTIFICATE OF SERVICE ...............

APPFNDIx

Judgment Eniry and Opinion, Courl of AF,peal,-, AL( DATE ) ^'1AT^2`=!9-

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EXPLANATION OF WHY THIS IS A CASE OF PUBLIC OR GREAT GENERALLNTEREST AND NVOLVES A SUBSTALNTL4L CONSTTTUTION QUESTION.

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STATEMENT OF TEE CASE AND THE FACTS

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AE 1: Appellant was deprived of his confrontation rights under the Sixth Amendment (asapplied through the Fourteenth Amendment) and Section 10, A_-ticle I of the Ohio Constit, itionwhen the trial court refused to allow appellant to present a defense show-ing t3at theprosecution's primary witness was biased, prejudited, md ha-d a motise m ey:e.

Issae: When a defendant with a m-ior conv- -6 is ° ,by his l^£^-sister of takingher handgun, loading it, and threatening to 1a71 his giriftiend._ shDdd the be permittedto show u'tat his half-sister was biased ab inst him • i:ee ww planning testify that shefalsely accused her husband of domestic violence?

AE 2: Appellant was deprived of his confrontation rcglits under the Sixth Amenciment (asapplied tdsrongh the Fourteenth Amendment) and Sectim 10, Article 1 of the Ohio Constitutionwhen the trial court refused to allow appellant to present cvedenee of inconsistent statements bythe proseeeaion's main witnesses in regard to a ts bias.

Issue: When the defendant's hat&sistc;r (who accmged "oftaking, a handgun) and hisfuend (who claimed that he found the bandgun aft^ de-fcadant was anmsEed) both deny everdiscussing buryingtselling the handgun, sliouId the defimdmi be to use eictrinsicevidence to prove that they actnally discussed doingw on nu- occasiom shortly after heaIIegedly took the gun?

AE 3: Appellant was deprived of his state and federal ckw process right w a fair trial when the*`^-._^ "ti:`** Ev^..e aRle t^ ?lir•:t vsrain*rii^at sj^ ^Ahm#'c ^a+-^' Tmgtti-Y t_'.nnvir'lsnn

in violation of Evid1L 403 and 404(B).

Issue: When a defendant is permitted to stipulate to a genmic prior €etony offense ofviolence in Iieu of adnvtting records showing that he had a prior nuad.er conviction, does the

p--- tirtt! imprnperlY convey the gravity of^ir Fan.'i^aat's pr_°sr o^ Ezv f_tig the jury thatm----c^'ir--°- -defenuiant spent 18 years in prison for that o€feme?

AE- 4: Appellant was denied his state and federaT A^id-mW Heit ID the effeetive assistanceof counsel by counsel's failure to properly ob,yeci to - ible evidence.

AE 5: Appellant was denied his state and federal constitutional rights to due process and a fairtrial by the cumulative effect of these errors.

4;

VI. ARGUMENT

A. Assignment of Error Number t)ne. Appellant was deprived of his eon€rontationrights under the Sixth Amendment (as apprwd tkrouglr the Fr th AMWnt)and Section 10, Article I of the Ohio Constitnfioa wiien the taial court refused toallow appeIIant to present a defense showing that the prosecattion's primary witnesswas biased, prejudiced, and had a motive to Iie.

1. Factnal Background

At the beginning of the cross-examination of Stolpa, defense counsel asked whether

YaSsIer .^^ 1y^nng ^ntwh her _{rhen ghe hni her hiichanri rrmnvxi frnm the home_ The pr(_1SeCution

objected on relevance grounds and the parties approached the bench for a conference< At the

bench conference, defense counsel explained that Stotpa I'.ied about her husband being abusive to

get him out of the house, and Anderson and Kassler wvre able to testify to that effect_ As a

result, this evidenee was offered to show Stolpa's bias and motivation to lie about Anderson.

Defense counsel asked for pernaission to question Stolparinst and if she denied lying about he<

husband and Anderson, then Kassler coutd testify about the ties. T=- 304-305

The prosecution countered that this was a collaterai matter relating to Stolpa's divvrce,

and it did not show bias or prejudice. The prosecution also argued that any testimony from

Kassler on this subject would be inadmissible extrinsic evidence. Tr 305-312

Defense counsel was given the chance to proffer his evidence via a voir dire examination

of:Stolpa_ During the voir dire, Stolpa testified that she; as her child's guardian,had filed a

domstic violence action against her husband alleging that he hurt their daughter. The incident

hile Kassler was living with them, but Stoina denied that Kassler saw or

i occurred. Stolpa also denied ever talking to Kassier about the incident or tell'h-3g

Kassler that she made the allegations just to get her husband out of the house. Stolpa denied that

A_odcrsorr-toM her that her daughter told him that no domestic violence occurred. Stolpa also

denied teIl'mg _A:nderson that she would not go ahead with the domestic violence case. Stolpa

testified that she was not aware that Anderson and Kassler had been subpoenaed to testify in

tegard to tla violence action. Tr 312-321

Iy expressed concerns that the defense was attacking Stolpa's

characam Em in The end, the court found that the evidence pertaining to the Stolpa divorce was

it. inadmissible. Tr 34I5-31.2, 314 321

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Ev-id.12. 61Ig^) suns: `Cross-examination shall be permitted on aIl relevant matters and matters

crr.dibffity.' Bias is clearly a "matter affecting credibility"-Evid.lt. 616(A) provides

that a witiess may be irnpeached by evidence of "bias, prejudice, interest, or any motive to

"`Evid-R- 611 and 616, by specifically mentioning credibility, bias, andprejudice

cross-examination, are a testament to the inherent probative value of

sLmh evklence.4 Oberhn r. Akron Gerr. Meat Ctr. (2001), 91 Ohio St.3d 164, 171, 2001-Qhio-

243, 743 N.E.2d 890.

And, contrary to the trial court's belief, evidence of bias is typically highly relevant.

E'

"Proof of bias is almost always relevant because the jury, as finder of fact and weigher of

credibility, has historically been entitled to assess all evidence which might bear on the accuracy

and truth of a witness' testimony." U.S. v. Abel (1:984), 469 U.S. 45, 52; 105 S.Ct.465. "It is

fundamental that the bias of a witness may be explored to test crechba`t.it„y_ SYate v. Gavin (1977),

51 Ohio App.2d 49, 53, 365 N.E.2d 1263. Furtherrnore, dw po ral bias of a witness is always

significant in the assessment of the wimese crelibi`Ct^e, as ^the ^r of 1%a mList be sufficiently

infonned of the underlying relationships, e':rcumstatices, and ird'iuences operating on the witness

"so t.hat, in the light of his experience, he can determine wtet^ra.-mutafim in testimony could

reasonably be expected as a probable human teaction."" &nte v. Wi-Iaiasts (1988), 61 Ohio

App.3d 594, 597, 573 N.E.2d 704, citing 3 Weinstein, Evidence (1988}, Section 607[03]." State

v. Shonclrick, 9a' Dist. No. 3216-M, 2002-Ohio-2439, 115.

Courts have repeatedly held that a trial eoL^t a dfivmzetian whm it prohibits cross-

examination for bias. For instance, in Stae v. Moore, 3d I3ist. '_Nka, 1-1-27 39, 2001-Ohio-2159,

the defendant was accused of attempting to steal gasol"nze frDm the serwice ta*s at a golf course.

Ttw trial court refused to allow the defendant to question the asesting depuLy as to whether he

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Third 1}isri-ict reversed, noting: °`Wtu"le courts fune br£tad discm:ioa irr ^j=_= a the

presentation of evidence, potential bias or interest on the ppat ofa witn= as to disputed

evidence is always considered highly relevant, and courm must be r eluctarit to restrict the trier of

fact's consideration of such testimony.... ' Id., citing•_Sar€e ^^ ^ (1983), 5 Ohio St3d 160,

165-166.

In S7wndric75 supra, 2002-Ohio-2439, the ,= <- w'as aect-m-ed of raping his

developmentally disabled step-granddaughter and his ottrer step-granddaughter was the only

eyewitness to the rape. The eyewitness allegedly wanted to live with the defendant and her

y

grandmother, but the defendant would not allow it because the eyewitness had previously stolen

his credit card and charged up $1,500. Id. at 116. The trial court would not allow the defendant

to introduce ekidence of the credit-card theft; finding that it was improper character evidence.

The Ninth Uistrict revemed, finding that the trial court abused its discretion in excluding

evid=e ofpotmtid bias. Id. at 117.

Insi&e v. }3em*s, 117 Ohio App.3d 442, 690 N.E.2d 955, the defendant was accused by

his ex-wife and seventeen-year-old son of domestic violence based on an alleged threat against

bi3 ex-wije. The defendant sought to subpoena court records relating to all the cases that had

bem filed by his ex-wife and her new husband in order to show that they had a history of using

the legal syst= to harass hinv However, the trial court quashed the subpoenas, concluding that

t-he evidence wm. =y and irrelevant. The Sixth Uistrict reversed, finding that the proposed

prove bias or prejudice on tIhe part of the defendant's ex-wife. Id. at pz

446-44M

'I'lie e-i_dence in this case related to the relationship between a party and a witness, and

dut tFpe ckfevidenm is always relevant to show bias. State v. &°axton ( 1995), 102 Ohio App sd

-sss ^sr c_c as ^ ^-^ ::-m ^r - a,._..._ . • ... _-....:,sa ^.n.t.e..,,e ..^.,...^. e.,.t..., :., .-a. s^, .ie, u.°es:v_^zae ^ rv. u tviueinuii waa going w fnvvcue cvica uw egauaas s^va}sa ^.i .i ^?u'u

the domesde vioienm allegations, then Stolpa would have an oin-ious motive to lie about

Andmm in order to get him out of the way. After all, parents have done far worse during a

pmffim divmmce in oaaier to maintain custody of their children.

In nmard Bo the trtal court's concent that the evidence of the domestic violenceincident

. be used anack Stolpa's character, the U.S. Supreme t°€nart expressly rejected that

vmWd agm "[T]here is no rule of evidence v+-hich provides that testimony admissible for

one purpose and ina{fimiccSble for another purpose is thereby rendered inadmissible; quite the

contrary is the case. It would be a strange rule of law which held that relevant, competent

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evidence which tended to show bias on the part of a witness was nonetheless inadmissible

because it also tended to show that the witness was a liar." Abel, supra, 469 U.S. at p. 56; see

also Shondrick, supra, 2002-Ohio-2439. The sameis true in regard to Stoipa.

The prosecution's argument that this was a collaterai matter that could not be proven

through extrinsic evidence is equally unavaiIing. Under Evid,R 616(_4.), "[b]ias, prejudice,

interest, or any motive to misrepresent may be shawn to ' . either by

examination of the witness or by extrinsic evidence.` Relatediy, a party can use extrinsic

evidence to impeach a witness with se-lf-contradicti (prior inconsigimA statements or conduct),

so long as the contradiction relates to bias under Evid.R. 616(A). Evitl.R. 613(B)(2)(b)&(C).

Thus, bias is never "collateral" and is always provable by extrinsic evidence. Anderson should

have been permitted to explore Stolpa's bias, regardless of w -he had to resort to extrinsic

exidence.

The only potential limitation on evidence of biars is Evid.^^. 403_ tinder Evid.R. 403,

even relevant evidence may be restricted when the p robative valtm is subsumdafly outweighed

by the danger of unfair prejudice, confusion of issues, or mtfi^din4 fue jury_ This provision

presented- See Oberlin, supra, 91 Ohio St3d 169; A.74, supra, 469 U.S. at 54-55. But in this

case, Anderson was not even allowed ta raise the issue, ' aiow go so far as to implicate Evid.R.

403. -

Anderson was denied any opportunity to jnry ^ evkknee of Stoipa's bias.

This bias could also be imputed to Myer, vr-ho tvas SbDWs . and would have a similar

interest in having Stolpa maintain the upper'-lsand in t€e d=varrelcastody . gs. The jury

should have been permitted to hear this evidence so that it could accurately assess the credibility

of Stolpa and Myer.

ft //

3. Prejudice

The error in this case raises constitutional issues relating to the right of confrontation and

the ability to presenta defense. See Davis v: Alastua (1974), 415 U.S. 308, 94 S.Ct. 1105. As a

uld evaluate prejudice using the standard for constitutional errors: whether

the e^$w-as hanniess beyond a reasonable doubt. Chapman v r'alrfornia (1967), 386 U.S. 18,

In that regard, the Third District has recognized that if the trial court excludes

evidence of bias that "is vital to either the state's case or to the defense, the trial court has abused

its dizxretiomm and reversible error has occurred." hfoore, supra, 2001-Ohio-2159.

In tI-ds case, the evidence of Stolpa's bias was not merely "vital" to the defense, it was the

entire defense. The weapons-under-disability charge rested primarily on the testimony of Stolpa

I3?fyt-- Beemw they were the only witnesses who claimed to see Andesssan with a gun, their

Campbell's credibility was also ingportant because his story about the

points to Anderson, as well. But oa key issues relating to the haru3Iing of

gim and the eo^.^acts between Stolpa and Campbell, the proseeution's witnesses repeatedly

crE-tti°-^^= each other

and Kassler testified that Stoina drove Kassler and Anderson over to

Campbeff's on December 30ei. Tr 468-469, 538-540 But Stolpa denied doing so,

dakrimg that she only took them over to Campbell's house a few days earlier. Tr

340-341

2) Swipa testified that Kassler told her that Anderson planned to shoot the gun on -New

Yea's Bvw Tr 235 But Kassler testified that she cfid not know of any such plans Tr

519. 521-52-2

3) Stolpa testified that Anderson went out to the garage on his own and put the gun

away. Tr 235 But Myer testified that Stolpa went out to the garage with Anderson to

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put the gun away. Tr 544

4) Stolpa claimed that she only went into Campbell's house and met him once before the

holidays. Tr 340-341 Furthermore, Stolpa and Myer testified that nobody left

Stolpa's house New Year's Eve. Tr 340-341, ,5--".Q-541 But Campbell testified that

Stolpa, Kassler, and Anderson all came over and net him onN,-w- Year's Eve.

Campbell distinctly remembered that vist took his half-empty

bottle of Wild Turkey. Tr 429-430 Not eouncidentallY, +:vervone remembered

drinking Wild Turkey on New Year's Eve.

5) Stolpa and Myer both testified that Stolpa called Campbe41 shortty after Anderson left

with the gun and asked him to talk A nderson drnvn- Tr 274-275, 280-28 l, 563 But

Campbell denied receiving any such eall. Tr417

6) Campbell claimed that he called Stolpa to ki -ha know tha Andemn had been

arrested. Tr 377-382 But Stolpa denied em any such ca[L Tr 276

7) Stolpa, Myer, and Campbell all claimed that security-conscious gun

collector who took the time to unload the gun aft4-. he found =--Isfi the gun and

arntniuiition in a paper `-^ ^- on Stot ---£ ^ Ks^c iau^ca's `u`w'^`. she saws F^*^-

Campbell bring the gun into the house and hand it to Stolpa when he came over to get

Anderson's things. Tr 494-495

Faced with such conflicting testimony on key ismes, *^ kzry w-ts left with an obvious

question_- Why would Stolpa lie abotit the W. Andthe record d€sg - that the jury was

actual!g wondering about that issae. Me aul couri e- ` ffie-pmm m sknit questions to

the court after each witness and on two occasiom a juror s_xniaed the same question asking

w-hether the living situation-Anderson and Kassler living rent free in Stolpa's house-had

caused tension. Tr 616 Thus, the jury clearly noticed the contradictions and was wondering

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whether Stolpa had any reason to lie.

Furthermore, the trial court expressly recognized this obvious hole in the evidence.

W'hen the triai court sentenced Anderson to a maximum term of five years, it noted that it

beueved Stolpa because she had no reason to lie. T hus, in the ultimate Catch-22, the trial court

refused to allow Is,afiemn to present evidence of Stolpa's bias, then penalized Anderson for

bx Stolpa would lie.

As Anderson articulately explained during sentencing, Stolpa took advantage of his

argument with Kassler to set him up with a false allegation about a gun in order to prevent him

undamfifing her domestic violence claim against her husband. That was his defense, and it

could have answered some of the lingering questions raised by the wildly conflicting testimony.

na peanaitted to hear it. In the absence of that defense, Anderson was denied a

B. Assignment of Error Number Two: Appellant was deprived of his confrontttionthe SiaEth Amendment (as applied through the Fstarteeath Amendutent)

snd Sedim 10, Article I of the Ohio Constitutura when the trial court refused toappeffant ta present evidence ineonsbtmt statements by the prosecntiWs

in regard to a material issue going to bias.

Kassler. d that she overheard Stolpa and Camphell taIking about the gun, but ilte

t.ria:i cou=t would not pennit her to testify about the substance of those conversations. Initialls,

Kassier tesdfted that after Anderson was arrested on January 2'd, she heard Stolpa talking about

seffing tIm-- gun 'Iue prosecution immediately objected on hearsay grounds and moved to strilce.

T-h-- cesm t:I^ objection and ordered the jury to disregard it. Tr 492-494. KasSler vas-qmmined

thm asked VAICUIM she witnessed Stolpa and CamDbelt disxiussing the gun on 3anuary 2nd°

Again, the prosecution objected and again the court sustained the objection. Tr 504-508

Kassler then testified that about a week after the incident, she went over to Campbell's

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house with Stolpa and overheard another conversation between Stolpa and Campbell. When

Kassler was asked what that conversation was about, the prosecution objected. This time, the

trial court overruled the objection, noting that Kassler could testify about the topic of the

conversation as long as she did not state what was actually said. IzsleT then testified that the

conversation was about the gun. Kassler fiarther tesitfed thEa sIe "a;ro€et had a stroke" when she

heard what they were saying and dccided to move otn of -'s house Tr 508-512

Later on during trial, defense counsel pro#;ered that Kassier would have testified that she

heard Stolpa and Campbell talking about the sale ot'the gun- Tr 635

2. Analysis

Kassler's proffered testimony that Stolpa and Campbe3i TLscussed seIling the gun on

n+.ultiple occasions should not have been excluded as bearsay_ Stolpa and Campbell both denied

that tlYere were any discussions about seiling the gam. llhis^ Kesdc& was being

offered for impeachment purposes to m `e ,' andtor conduct

Irsofar as Kassler's testimony was being offer-al for impeacbmerit., it simply was not

hearsay. Hearsay is any out-of-court statement "offered in.. ° to pmvr the truth of the

matter asserted.°° Evid12. 801 (C). A prior inconsi^ sitatemeia used to hnpeach a witness is

not hearsay because it is not being used to p€ove the truffi of the asserted. See Ilenis,

supra, 117 Ohio App.3d at p. 447. hi.stead, it is nmriy being umd to at'acIc the witness's

credibility by showing that they are not trustwurthy because thev _ y said something

different than what they are saying in eourt.'

The only real Iimitation on the adrnisibilvty e^asges .-^._^>^y is the Iimitation on

extrinsic evidence embodied in Evid.IL 613 and Erid-RL 616. When awd together, those rules

3 When the prior statement is made under oath in an adversary proceeding, it is actually admissible assubstantive evidence of the truth of the matter asserted under Evid.R. 801(D)(1)(a). That is obviously notthe case here, where this testimony was only offered for impeachment. This type of evidenceimpeachment is routinely admitted subject only to a limiting instruction for the jury.

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a(low the use of extrinsic evidence to contradict a witness's testimony under six circumstances:

(1) the subject matter is of consequence to the detennination of the action, other than the

credibility of a witness;; (2) it relates-to opinion or reputation evidence of the character of the

vritness (Ev^.d_R. 688(A)); (3) it relates to a prior conviction (Evid.R. 609); (4) it relates to bias,

prenxEce- i<2eresr_ or any motive to misrepresent (Evid.R. 616(A)); (5) it relates to a sensory or

ancntal defert (Evid.R. 616(B)); and (6) extrinsic evidence would have been permitted under the

common law of impeachment if not in conflict with the Rules of Evidence?

In regard to the first circumstance-whether the subject matter is of consequence to the

determfiration of the action-, it is difficult to imagine a topic more germane to these

proceedings than the question of when and how Campbell came to possess the gun. If Campbell

uwog-w se'd the gun for Stolpa, that could explain how he came to possess it, independent

_ 's a'3leged involvement. It would also provide soma much-needed context for

ivting testimony of Campbell and Stolpa, who were clearly struggling to

It would also explain Campbell's statements to Anderson about not

dtnvt°' for this. Although Campbell testified that he was afraid he might get in

a more li'kely expianation is that Stolpa put

CampbeH in a -us position when she made her allegations about Anderson. All of a

was stuck with a firearm that was supposedly stolen and used in a crime.

Addi' ly, the alleged sale of the gun raises issues of bias, prejud'ice, or motive to

mimvpresem og the part of Campbell. Did Stolpa previously give the gan to Campbell to sell

under the ` .--such that he felt compelled to lie in order keep from "going down" for that?

V47at was the nature of Stolpa and Campbell's bushnes.s arrangement? Did CarnpbeYt have a

2 Evid.R. 613 and 616 also permit extrinsic evidence to prove a contradiction if that evidence would be

permitted under Evid.R.106, but there is no such rule anymore.

4Wr6-

financial interest in supporting Stolpa because she was offering him a large cut of the sale price?

Anderson should have been permitted to use extrinsic evidence to explore these issues.

, , 3. Prejudice

Again, this error raises constitutional concerns and should le ;nldged against the

Chapman standard of harmless beyond a reasonable 'b supra 3t?6 U.S. at 24. As

noted above, insofar as this evideme went to bias ay-i was €-€#al tv-, the d6ense, reversible error

has occurred. Moore, supra, 2041-Ohio-2159. t=tntllermore, as diseussed above, the evidence is

case was far from overwhelming. The prosecution's svvitrumes; wem mutinely inconsistent on

material issues, and the jury clearly notieed the discrepancies and was loolcing for an

explanation. Under these circumstanees, the error in refusing to permit extrinsic evidence

regarding the gun-sale conversations was clearly not hannim beyond a reasonable doubt.

C. Assignment of Error Number Three: AppeElant -was deprived of his state andfederal cttuse process right to a faii- tsiat was able to eMtprejudicial information about a t's in violation ofEvid.R 403 and 404(B).

1. Factual Backgmttnd

The basis for the weapon under dsablTriy clarV vias a f

Anderson was convicted of murder in 1990 and s}eur- 18 years

:ei convietIo

fore being release on

parole. In order to keep these deta%l.s away from the }tay, Anderson o-r'fered to stipulate to having

a prior conviction for a felony offense of viole= pursu.ant to OPd CWB FZS (1997), 519 U.S.

172, 117 S,Ct. 644. Tr 153-158

'itw prosecution opposed the m fuse any such

tipulation. Instead, the prosecution mught to prive :hepribram-23MdEzsugtt testlmony

about the nature of the prior conviction and a certified ewf of the record of eonviction_ Tr 160

The prosecution also argued that Anderson's criminal history was relevant because it explained

why the victims were afraid of him. The prosecutor noted: "He is threatening to shoot the

0 17

victims and, you know, they are taking it seriously because of his prior murder conviction." Tr

163

Defense counsel countered that the prosecution just "want[s] to be able to stand up and, .

this entire trial yell murder, murder, murder ir this case. ... Tne truth is that's what

twv wamt m do ana' in there is this sum and sabstance of their argument. They want to

smwme on the basis of not what he had did today or the day that they charged him, but on the

basis of what he oid prior." Tr 166

The prosecntor responded: "As far as standing up here and yetl"mg murder, murder,

murder, what we are going to do is we are going to give this jury a complete picture of what

actually took place, primarily between these two individuals and how this has been ongoing for

21 years. We are not going to talk about that murder any more than we have to, your Honor, Isut

wkhow that piece of background, none of this makes any sense. ... All we want to do is give

as to what happened and without that murder conviction being

they are not going to understand the rest of the case.°' Tr 168-169

isideration, the trial court found that the murder conviction was prejudicial

ue in lidrt of the stipulation. Howe-vti=, the trial court indicated that if

prusecxifim felt that they needed to get into the detai.Is dtr'mg trial, they could request

admission under Bvid.R 404(B) and the court would rule on that issue separately. Tr 181-185

Despite the trial court's ruling, and without first requesting admission under Evid.R

managed to emphasize the severity of Anderson's prior conviction on

t"}uring opening statements, the prosecutor went out of his way to prime the jury to be

curious a'oout the nature of the prior offense, stating: "Now, the Judge has ruled, the Court has

ruled that we can't go into details on that and that there has been a stipulation to that, to the

WlIr

felony offense of violence that occurred in 1990, but I want to assure you it is nothing we are

keeping from you. We know the facts and the background and all the elements and the

particulars of it. Okay. Sometimes when that doesn't happzn, the;ury is back there thinking

why didn't we hear about that? And if I were yoaz of course, I would be curious as to w-hat the

felony offense of violence was, but it has been sti putated to and ie= ara ekmenL°° Then the

prosecutor emphasized that Anderson spent 18 yeam in prison fbrt:•_^ p6sr offense: "Now, with

that in mind, the offense, the felony offense of vir,lence occurs in 1990. And the defendant goes

away for a considerable amount of tfine FIe getsparoled hr?f.08 and his long-time girlfriend,

Kara, who is now 36 years old, has been waiting for hirn- And they renew their relationship."

(Itatics added.) Tr 202-203

The prosecution then reminded the jury that Antlerson spent 18 yea,-s in prison on two

other oecasions during trial. First, when playing the record-mg of A_ndersces post-arrest

telephone call to Campbell, the trial court permitiec-I _ ovw defimse , the prosecution to

piay a portion where Anderson mentions going back Yo prism for 7-0 pears• The prosecutor

actually raised this issue and offered to attempt to mute- ttnit portkm of the recording, but the trial

i:ouif o velTiiieu a dea^n3^ ot.je^irn^ ha, ,r_af^ out during the

opening. Tr41t3-412 Second, during KasslWs dwprosecutim asked: "°Now, your

relationship with the defendant was interruptexi %r anumber of ycas and basically stopped in

1990 and then restmied in 2008; is tirat corr°ct?" And Kasvlier i "Correct." Tr 463

2. Analysis

Regardless of what was d'aseussed pre-tria, the pros_^" carne back to the trial

cour t with a motion to admit the detai"',s of 's prior conviction under Evid.R. 404(B).

And it is not hard to figure out why. Rvid.R. 404(B) permits evidence of prior bad acts for only

linrited purposes, such as "proof of motive, opportunity, intent, preparation, plan, knowledge,

111 /7

identity, or absence of mistake or accident." The evidence of Anderson's 18-year incarceration

is not relevant for any permissible purpose. The prosecution's only argument for relevance was

details of the prior conviction were necessary to give the jury background and show why

the victims were a$aid of defendant. But this is a patently improper character inference:

mvrdan-ed. someone before, so he was likely to threaten to do so again.jAnderson

regarding the severity of Anderson's prior conviction and the atnount of

time he spent in prison was not relevant to any aspect of this case and was severely prejudicial.

7unDrs are not stupid. They would have understood that Anderson did not do 18 years for a

simple assautt; instead, he had to have committed a particularly heinous offense to warrant that

much time. This evidence should have been excluded under Evid.A. 403 and 404(B).

3. Plaia Error

t7nfixtunately, after competently raising and arguing the Old 4hief-stipulatiorn issue at the

t-n' .9 :. parled to effectively object to the prosecution's references to Anderson's 2 8-

pdson . As a resali, this issue must be reviewed for plain error.

Under vdm.R. 52(B), "[p]lain errors or defects affeeting substantial rights nay be

y were ntH bririlght tu ific aiicincisn vfu^c Cvuit

but for the error, the outcome of the trial clearly would have been othexwi.se-

53 Ohio St.2d 91, 97,372 N.E.2d 804- The defendant bears the burden of

den€anstraft plain error, but even if that burden is met, tIre appellate court "has discretion to

diisregard^ Qe caw and should correct it only to prevent a'-manifest miscarriage of justice

i{#I Ohio St.3d 118, 2004-Ohio-297, 8(Y2 N.E.2d 643, 114.

In tli:s c.ase^ the error in informir.g the jury that Anderson served an 18-year prison

sentence clearly altered the outcome of the trial. As previously discussed, the prosecution's

witnesses repeatedly contradicted each other on material issues. So much so that the jury was

^O

left with doubts as to whether Stolpa, in particular, was biased or prejudiced against Anderson.

Under these circumstances, the jury was surely swayed by the fact that Anderson did 18 years for

a violent felony that must have been rather heinous to deserve such extreme punishment.

D. Assignment of Error Number Four. A t was denied his state and federalconstitutional right to the effedise assiscance of counad Isy counsel's failure toproperly object to inadriissiBle evideacc

In order to show ineffective assistance of counsd, !he naust show (1) deficient

perforrnance and (2) resulting prejudice. 8trick.!ami u FFaO.aFgton (1984), 466 U.S. 668, 687,

104 S.CL 2052, 80 L.Ed.2d 674; State v. Brartley {1959}, 42 Ohio SL3d 136, 538 N.E.2d 373,

paragraph two of the syllabus. Prejudiiee exists vulten there is a reasonable probability that the

result of the proceeding would have been different. SYrfckland, at p. 694_ Notably, ineffective

assistanee of counsel claims are "far naore solicitotae o,. the de 's rights°' then a plain-error

analysis because ineffective assistance of cauttsel claim r ` a ksur degree of prejudiee-a

reasonable probability of a different outeotte versm a but-fiw 0ing &nte v. Carpenter

(1996), 116 Ohio App.3d 615, 621-622, 688 N.E.2d 1 t9Q;S=s Y--kwiff (1996), 114 Ohio

App 3d. 306, 319-320, 683 N.E.2d 87; see aLso State v (21-*1}, 91 Ohio St.3d 516, 559,

fYh! a.i 2d 765 faf'..^uloa&i,+. i+inn.a.v-::si^

In this ease, defense eounsd perfomied ineffi^ by IWW ta object when the

prosecution informed the jury that Anderson spent IS years in prison 'ibr his prior conviction.

This issi,ie had been raised pre-trial, with a ruling that gmxmiflv_-fhvorcd the defense by requiring

the prosecution to seek admission of tlhese sorts of demiis under E.3d.R. 404(B). Nevertheless,

defsnse counsel failed to object durizsg the prosecutor poisoned the jury

with the information about Anderson's lengthy,l

prosecution elicited that testimony from Kassler.

sen--,- and again when the

The question then becomes whether there was a reasonable probability of a different

^^/

outcome if the prosecution had been prevented from eliciting that information. As previously

discussed, the prosecution's witnesses repeatedly contradicted each other on material issues,

leaving the jury with doubts as to w-hether Stolpa, in particular, was biased against Anderson.

t7nder these circumstances, there is a reasonable probability that the jury was swayed by the fact

tira Anderson was convicted o€a violent felony that was so heinous that it required an IS-year

E. Assignment of Error Namber Five: AppeOant was denied his state and federaloansfituflmml rights to due process and a fair trtaI by the cumulative effect-of tlrese

ercars.

"[A] conviction will be reversed where the eumulative effect of errors in a trial deprives a

defendant af the constitutional right to a fair trial even though each of numerous instances of trial

not individually constitute cause for reversal." State v. Garner (1995). 74 Ohio

St .'. d 49, -f--r4, 656 N.B.Zd 623.

witously noted amplified each other in terms of their impact on thejury.

The Drosecution, poisoned the jury against Anderson right from the start by explaining that

_ ^ away for a really long time-18 years to be precise. Then the prosecution's case

.^F

_ __.______ _ ._.. .n..,^s on ^}t$CJ3T.J who

.t_ .it_. "'_.. .Y"e`'."E '.'.."aeeaiL°': l ' `\°"a's^°'^#ia°!t'^6tG(!ly I.VLU2lViLCC.u eaa.u c/en6i +^+F ++l'ia aoau..J. rr^a+-....was ^'`

was denied the opportunity to explain the eontradictions by demonsUating

that each witness had a motive to lie.

Andmm was not permitted to present e-.ridence that Stolpa was biased against him

becauw be -ww going to undermine her domestic violence claim against her husbansi 17his

jury's ability to assess Myer, who had a similar motive to protect StoWs

c°asodF= of her gandcht'Idren in the looming aistQdy ftght.

Then Anderson was prohibited from eliciting testimony to show that Stolpa was try-ing to

sell the gun to Campbell. Not only did this evidence cast doubt on Campbell's story about how

^z

the gun came to be in his possession, but it also gave him a bias or motive to support Stolpa's

claims about Anderson.

Thus: zhe jurv tvas presented "itha story from witnesses i vho contradicted each o[lier on

ma€eriai but the jur;,- was _ev,^r infortned about why these wit_nesses n-^ight lie. tibser.t ar:

expianat?on_ wliv shouldn't ^:=e;.r_^y be€ieve the witnesses? After all, the prosecution

sua;essSitl.° cTeaEed the i4npression that Anderson was an abnormally dangerous felon by

repeatedly referring to his 18-year prison term. Furthermore, the trial court conceded during

sentencing that it belteved Stolpa because she had no reason to lie. The cumulative impact of

these errors denied Anderson a fair trial.

VIi. CONCLUSION

As a result of the trial court's evidentiary rulings.. Anderson was prevented from

presenting a defense and demonstrating why the prosecution's witnesses may have been Iying

abmit hin-L ir_ the absence ofthat evidence, the jury had no ability to accurately assess the

cretiibility oft]te pr€>secutior:-s NNiinesses and engage in any reliable fact-finding, This Court

should reverse Anderson's convictions and remand the matter for a netiv, fair trial_

'^x,>,l/^/ . rv^et.rc.U `7^5'9- ^'/^N9hff.WDl^

'ilJSl[RIr1ON /

no^aFSs

1511W,2 1/ O/-/ ^^',7,;2 YcIIY, SfATE gzT

DEFENDANTT-APPELLANT, PRO SE

23

CERTIFICATE OF SERVICE

I hereby certify that a copy of the forea

forwarded by regular U_S_ Mail to

i. SWgort ofJurisdicton was

Pros°cuting Attorney,

Countv. s=, ^ r^ • ^^ti^ Otio

333b^, tris J day Q` 4&ez _ ?`a

^^v^

DEF^,'DAIvT APPEI.I.A._IT_ PRO SE

a^ 0

IN THE SUPREME COURT OF OHIO

STATE OF OHIO.

PWntipf-Appellee,

S'G

Case IVo.

On Appeal from the n n^Coumy Court of Appeals

^ Appellate D:s:rre€

C.A. Case No. aQI% CAOGG c-Iaegendant-Appellant.

APPENDIX TO

MEMORANDUM IN i SUPPORT OF JURISDICTIONOF APPEI.LANT ^'icd;Al,J frinl.:lei.glfJ

COURT OF APPEALSMORROW COUNTY, OHIO

FIFTH APPELLATE DISTRICT

JUDGES:?-P STATE OF OHIO : Patrida A. Delaney, P.J.

Shei'sa G. Farrner, J.Plaintiff-Appeliee : Julie A- Edwards, J.

Case No. 2091CA0006

F*•ONAL+O ANDERSON OPINION

Defendant-Appellant

RACTER OF i ROC EEDlNG:

DATE OF RIDGMENT ENTRY:

E:ARANCES:

; os" . .""-t,{pe}!ee

CFARLES HOWWNDNlorrow- e:oaas;s*y Prosecutor

JOCE.'cYN STEFANClN

Cr,"mmrinat Appeal from Mcurow CountyCourt of Common Pleas Case No.2r39 #-CR-0007

A.rTrnted

For [)efendant Appelfant

4,Al1LLfAM T. CRAMER470 Oide Washington RoadStrate 200Western7le, Ohio 43082

Assstardt Prosecutor6; `.aSE E-k* 'street

{. Ohio 43338

Mdrrow County App. Case No. 2011 CA0006 2

Edwards, J.

{¶1} Defendant-appellant, Ronald Anderson, appeals his conviction and

sentence from the Morrow County Courf of Comrsirm-^ ple^- on one count of having

weapons while under disabif•tty. PiaSntiff-ar^^ is t-a State of

STATEMENT OF Ir?E FACTS A-ND GASc

{12} On January 31, 2011, the Morrow Cocurotf Czrar,d ,iury indicted appellant

on one count of having weapons wh.ile under disabifdy in viohatmLn of R.C. 2923.13, a

felony of the third degree, one count of domesfic viole^ini violation of R.C. 2919.25, a

misdemeanor of the first degree, and one count of assault in violation of R.C.

2903_13(A), a misdemeanor of the first degree_ Tbvea- basis for the weapons under

disablity charge was a prior 1990 rixffde3 convk6on for valvicfa appellant served 18

years in prison. On Febnaarv 2, 2011, appeNaM . a plea of not guRty to the

charges.

{ff3} Subsequently, a jury trial comr?enced or, March 14, 2011. The following

testimony was adduced at trial.

Tina Stolpa is ap[3eLant's yc^;.^s At tiie tisne of the trial, she

was in the process of getting a d'avorce_ In 2010, Kar3 Kassier, appellant's girlfriend,

moved in with Stoipa and, approximately a r:or& or so lazer, appellant also moved into

Stolpa's house. Stolpa testified that shs - aTm thal was kept i., ttie garage in aowned

case and b.^±at the bullets wer= icept. in tiheir ovim bag-

{qj5} Stolpa testified ftt in Decernberof 2010, appelant`s truck was involved in

an accident. At the fime of the accidenf, Kassler was driving arid Stolpa's oldest child

Mdrrow County App. Case No. 2011 CA0006 3

was in the truck. According to Stolpa, there was tension between appellant and Kassler

after the acxident

Stolpa testified that on New Yea(s Eve, appellant, Kassier, Stoipa's

;nztKeer. P^sborah Mver and Stolpa's children were all at Stoipa's house. She nsrther

testffivet ttiat she was in and out of her garage with Kassier, Myer and appellant drinking

beer, smoking and listening to music. While they were in the garage, Stolpa told KassRer

the same fime next year, she would be divorced and would be able to go out

frfends to a bar and shoot pool. According to Stolpa, after Kassier indicated that

she could go with Stolpa, appellant said that he did not want Kasster going out to a bar

and ti~,e two got into an argument. Stolpa then went back into the house. When

e- t came into the house shortty thereafter, his tongue was bieedirtg. After

4 ifafl asleep on the couch, Kassfer told Stoi€ra that she should vraice aplpaetlant

.V tecaLw appeltant wanted to shoot Stotpa's gun off at midnight. According to StoEpa,

tve, grm was in appeBanYs pants underneath his sttirt_

^} After appetlant woke up, he put the gun back in the garage after Sto^a

; that she did not want an accident to happen and her neighbors did not k&e kzud

noises. Once Stolpa's children went to bed, aQ of the adults had a shot of atcohol and

-Aerd cLt to the garage to smoke. After returning to the house, appeiiant and K2ssier gat

kto an arg€fnient over whether or not to pug out the sofa bed. According to

wma ssvearing and ye4fing at appeitanti and told him tFrat she would niot lay wfta

testfied that, in response, appellant told Kassler that she was drunk and dici

she was saying. They aH then went to sleep.

Morrow County App. Case No. 2011 CA0006 4

{18} At trial, Stolpa testified that the next day, New Year's Day, Kasster

announced that she was going to walk into town, which was three miles away, to get

some cigarettes and to clear her head_ After Kassle,.- returned, she sat on the couch

opposite from appellant and the tm hardly zck:e ic eacia. oUtr^r. Accordinr to Stolpa, at

approximately 8:00 p.m., Kassler, who had L-,F---. srr- .- in .thee garage, came into the

house and told appellant #1iat they were th€ouah_ SbDipa testffied that appellant agreed

and that after Kassler whisWed something to appedant, appeLant smacked Kassier in

the face and the two began yeAing at e-.cta ottrer_ A ier Kassier indicated that she was

going to leave, appeflant told her that she was not aoing anywhere and the two

continued arguing ksudly uniil S`uolpa tslet them to leavae. pedant and Kass]er then left

Stolpa's house.

{lp} Stolpa tesffied that she was in the with her mother when

appellant came into the garage and WWA to get tic- g.xa, vdkh was stored in a case in

her husband's F'uebird_ Wfien Stolpa toid appegart ffiat the gun was hers and that he

could not take it, appetiant threatened to laxek her ouL . _ then took the gun out .

of the car into the house, sat down at fl-&- -n table arg3 started putting the bullets in

at trlat.the clips. The following is an excerpt frorn Stoloa's tesfirriony

{¶Zt}} "Gt. E)id he load one ckp or t

".A. He loaded both of -sat domm to nLth(sbootsonandhe

said, well_. he stoW up after he got done `yiV tEic- boces, pt his; boots on. He stood up

and stood by my front door_ He turned around and tooised at me and said, well - -

excuse me. He said, 'Weli, the next time #at you see Kara or me we are both going to

be dead, because when I find her it is going to be over, because she is going to be

Morrow County App. Case No. 2011 CA0006 5

dead. I'm going to kill her. I'm going to kill myself. So the next time you see us just

ma.ke sure you bring a rose to her grave and you can piss on my grave for all I care

because I'm done. I can't take this. I can't take it out here no more. This is --

everyth'aig is iust too much.' And she F^ ;ust, 'I can`t live without her and t'm not g^ to

let fa- Eve without me.' And aA this crazy stuff.

fff 12} "And I'm - - I'm still trying to talk him down at the same time. I'm iike,

is not worth it. Just let her go.' I'm [ise, 'You don't' have to do this.' And he

- - at the kitchen table I was trying to take the gun from him. I mean I put - - I

put one hand on, I put my one hand on his arm. I'm like, 'You don't need to do this_

Just iet me have my gun back.' He is like 'At this point now sis 'rf vou ge_ } in rny avay

rrYf ociig to kitt you, too.' t mean just the look, the kxik in his eyes there is -- it is Re t

r him any more (sic). It was Nke nty brother was gone. There was so much

a#rGer-zxtd hate and rage in there. I don't even know.° Transcript at 250-251.

Mi3j: When Stolpa told appe{tant that the neighbors might see the gun and ca0

pokce, appelhant told her that he woudd shoot them also. After appellant Wt Stolpa

kxked the door and sat down on the c,oaach wfth hrar mother.

{ff14} Approximately fifteen or twenty minutes after appellant left, Stolpa and

Myer :re=ard a knock on the door and found ifasster outside shaking and crying_ r

Sk*a fhat appellant had passed her on the road and that she had heard and seen

1^-- 1,diated 9-1-1.

testmed at before caf+inta fhe police sx^e cafled Bruce GampbetlStolpa

after appettant left her house with the ctun- She te-st -4fied that she believed that Campbell,-------^

who was appellant's best friend, could talk some sense into appellant. Stolpa further

' Mbrrow County App. Case No. 2011 CA0006 6

testified that after appellant was in police custody, she found the gun and bullets in a

sack onfier front porch on January 2, 2011.lShe turned Gte gun over to the Sheriffs

Department. Sto{pa denied receiving a:.`orie -zaff fron? Campbelf, en January 2,

2011 or that she had cat!ed Campbell afte< avpe-Vaerftt was taken into custodv. She

further testified that she cfid n was arrested, or the

next day or the day after that about the out. She tesfifed that the only communication

that she had with Campbell was the nig,hr on w"ttEh inckletA' occurred.

f4ff16} During triat, Stoipa indicated that aptaeffant knew where the gun was kept

in the garage because appellant was frieazds witsa her husband and had seen him put

away the gun. She tesgied that appeffant had used ffigw. tDr target shooting.

r

{1[17} On cross-exa.rr-itiation. S^ tesffied tizt stie owned a van that had

been broken for over a year She I^astffied t ^ woEM cost between S340.00 and

5400.06 to fix. 1Nhen asked, Stolpa d^aed -Cat s!-e eveir eisa-msed setling the gun to

Bruce Campbeit or having him seg the swae in orsier z misss money to fix the van. She

testifred that CamptteH was an acquafftm-sce of hers ar,-d tiat appellant had given her

Campbeil's telephone number in case som^r- . a --Mven she was driving down

to Tennessee for Christmas" Stolpa also testified that Campbell came to her house

after appellant was arrested to p^ W app s clothes

lig-I Stotpa fu^^ ?es^^ ^^ s=^e ^i ^ a^e ^^etV's hoeiise on New

^ with apoettar^t arxf Kass^s ^^ a^t Kassier had gone to

Campbeit's house the day before New Yea*'s Eie" Sto4pa also denied that, after New

j Year's Day, she sent a text messagu to Kass.lf-- sayi:ig Uiat she would not let her6

brother go down for this. She testified that she spoke with Kassier and told her that she

Morrow County App. Case No. 2011 CA0006 7

did not want to see appellant go down and that he needed help with rage, anger and

self-control.

{q1G? At trial, Eruce Campbell testit^ed that shortly before New Year's. appellant

and Ka,sies cariie down to see him. He testified that on January 1, 2011 in the evening,

appellar;z called him and asked him to come picit him up because he had had a fiaht

wt-ith ti.is girlfriend. Campbell said no. Later at approximately midnight appellant showed

Campbell's door after riding his bike to Campbell's house. Campbell tesffied that

appeflant was not carrying anything. Appellant spent the night at Campbett's house and

was arrested there the next moming. Campbell testified that when he spoke with Stolpa

after appegant's arrest, she asked him about the gun and Campbell indicated that there

vas m gun. However, when Campbett went out later, he noticed that appeffant's bike----a.__

vos le^ up against Campbell's privacy fence W outside his garage door.

C,a€€ testified that when he brought the bice into the garage, he observed the gun

six inches under the door. There was a three or €our inch gap between the doGr arnd the

ground_ -ihe ammunition was next to the gun and there was a magazine in the gu+^_ A

secorid magazine was in a plastic bag with other ammunition. Campbeit tastifsed that he

then unloaded the gun and called Stolpa who said that the gun was hers_ He then

ret^d the gun to Stolpa in a paper bag along with two empty magazines an-d a bag of

tMi Campbeli testffted that on approxknately February 7, 2411, he receiv-ed an

urTsigned letter_ He testified that he recognized the handwrrdng on the lefter and that it

was appegant's handwriting_ Stolpa a!so indent=fed the handwriting as appellant's_

According to Campbell, the letter, which was admitted as Exhibit 14 at trial, asked

Morrow County App. Case No. 2011 CA0006 8

Campbell not to say anything that was going to damage appellant's case.' Campbell

further testified that he received a phone call from appellant after he was arrested.The

call was recorded and was marked as Exhibit 16 and was played for the jury. During

the conversation, appeliant made sevem; comments about s=_iling the gun or that Stolpa

had sold the gun. CamTbefl denied krzwiric amyti-a-g about Uttat. Apgeftant also asked

Campbell not to tum on him.

{121} On cross-examination, Campbe[!de°Led_ttsat Stolpa called him at 10:00 or

11:00 on New Yeaes Day and asked him to come get appegant and to talk him out of

whatever he was going to do. He furthec tesfi"ed that his garagetbam was locked the

night of January 1, 2011, because he was securky carmcious due to incidents of

vandarism_ Campteg testt^ted fhat

they were not runiiing

guns, that he had approximately 45

e his house, but that

sale or trading of guns. He testified fftat appegatt cfid not lia-re a gun on him when

appeltant showed up at his door. Tte " '_ was adduced when he was

questioned about the telephone cmriffsafimL

{W} "Q. You heard the phone conversaffon- ENhen you said I ain't going down,

were those your words, sir%

V3} `A_ Yes, fhey were.I

M4} 'Q_ What dfid you raean iay?^

{1125`} 'A. Wei[, I figured since i didrs -t call ttiee police when I found the gun and i

took it to Tina's house, that I put myseif in some

' Appellant, in such letter, indicated that things were not going °to (sic) good for me at the moment butdepending on you things could get a lot better for me.'

Morrow County App. Case No. 2011CA0006 9

{¶26} "Q. When Mr. Anderson asked you, there was a question in there where

he said something about Tina selling the gun. You answered, no, I don't believeshe

sokJ it What did you mean by that, sir?

, ^2771 "A_ Wetl, when I called her after tiiey arrested him, she said, `Where is myM

e€ts?° Sa if she had sold it -= Transcript at 424.

^ 8} On cross-examination, Campbell testified that Stolpa, appellant and

rvffidTurkey^to appellant to celebrate the new year. He denied that Stolpa asked him to

a

s'assler ak came to his house on`New Year's Eve,`and that he gave a p^^

seff the gun so that she could raise money to tbc her van. He testified that when the

offit-mrs who arrested appellant asked him where the gun was, he indicated that there

I firect, CampbeQ tesffied that appellant and Kassler had spent the

house not very long before the incident in this case. He was unable to recaH

the speciffc date. Campbell also tesufied that he did not call the police once he fou-nd

th^e gtm because he suspected that it was placed where it was by appeltariL

I,po} Kassler was declared to be a co+fs witness and was cross-exarn"€ned by

both pasties. She testified that she was residing in Cleveland with appellanf's mother

and sFepiather as of the time of trial. Kassier testified that she had known appeuant

since-she was 14 and that they had a daughter together_ She testified that she moved ki

^Szo^-, Stolpa's husband and their three children in November of 2010.

tp i} Accoroing to Kassier, on December 30, 2010, Stolpa dropped appeltantP

anc Kassler off at Bruce Campbetrs house, but did not spend the night there with them_

She testified that they went back to Stolpa's the next day and that when Stolpa talked

Morrow County App. Case No. 2011 CA0006 10

about going to a bar and playing pool with Kassier, appellant was not happy. Kassler

testified that she accidentally bit appellant's tongle while they were kissing, causing. it to

bleed. At trial, Kassler further testified t,^t she and aoD-^4Eant had a fight and that there

was tension between tf°^em_ Axco.^^ng to .k--. at ^r?nmately 8:00 p.m. on

December 31, 2010, apoeAartx said that he vzas dwse mfit her and hit her on the side of

her face with his hand_ She then told appeffant tt`tat she was going to leave. The

following is an excerpt from her testir^..sny at tiaL-

{¶32} "Q. And what was the defendant's response to that?

{j(33} "A. I don't think he reatty cared_ Fie was kind of, you know, he was upset.

{134} "Q. Do you recall the d` tsaying anytt-^ing to you about you weren't

going anywhere untH you go to Court ^ wreekkV h's ^?

M35} "A. We were arguwg ait I-e 7a.^^Fme" he was afraid I wasn't

going to go to Court, that I was going 't do that.

{Q36} "Q_ Do you recall arg:ingo about te track? Did the defendant ever say to

you, that about this busiaiess abcxA Coaex and ttEit you woLdd be lucky if the defendant

didn't ktlt you before then?

{137} "A. Could you please repeat that quesfion,

{1ff38} `Q. T•ne defII^xiard sm, you are no= gtffig w^.y^^-=here until after you go to

Court for wredcing this bijck and that yos wv-M lrs€Ky c: Ue defendant didn't kHI you

before then_ Do you r ci say^ anyt- _ In- tiat --?

{%39} "A. i tfvnk I wrote that out in ar^,r stal

{B40} "Q. Is that in your state:nent?

{¶41} "A. I'm pretty certain.

Morrow County App. Case No. 2011 CA0006 11

{142} "A. So that's what you wrote out in your statement; is that correct?

{Igd3} °A.f`m pretty certain that is." Transcript at 473.

jff44) Kassler testified that she did not recall appe!Iant threatening to kill her if

s^.^ t^^ ^t^:ough s:k:h statement was i<, her written statement to police. She test.,^1ed

tt°.^ si-ie %es pretty upset when she wrote out her statement to po6ce_

^ff45} Although, in her written statement to police, Kassler had indicated that

Stolpa would not drop her off anywhere because she was afraid, Kassler testifted that

such statement was inaccurate and indicated that Stolpa could not take her anywhere

because the car belonged to Deborah Myers and Myers told Stolpa that she could not

use ttEre car. When questioned whether she recalled tefJing Stcrtpa's mother ftt

ap^:-rt was going to ki.^4 her if she did not get out, Kassler testiied ttrat whde she

wTuts suc:h statement in her written statement, she exaggerated because she was-

T146"T Kassier, in her written statement to potice, stated that appeHarrt threw her

ground, grabbed her by the hair artd tokf her to get the °FF in the house.°

TranscrilAi at 481. She also stated that uvhen they went back into the house, appellant

hit her again. However, at trial, she testified that appellant did not hit her again_ but

itant had raised his hands to prutect himseiC because she was angry-

fE4f} Testimony was adduced Lhat after Stolpa tuki appeHant ane Kassler to

Ieave^ Kasstef went about three houses away and hid in the trees behind a fr ruse- for

approxgstately 15 rrtinutes. in her statement to po6ce, she stated that after she staief

waWng toward the road, she heard appeftant talCing on his phone and heard a cticking

sound which she thought was gun. She testified that she never saw a gun, but that

Morrow County App. Case No. 2011 CA0006 12

after going back to Stolpa's house and hearing what had happened, she thought that

the clicking sound must have come from a gun.

{¶48} Kassler admitted that in her writ?en statea;€ent to police, she stated that

she wanted Stolpa to catt the pofic°- so tf•,ar ;-- n! woulud not come back and kill her.

She also admitted wridng that appeflarft was very damerLuz a-id had threatened to kill

her the whole evening_

{'([49} According to Kasster, slie wftnessed Bxwe Campbell come to Stotpa's

house on January 2, 2011 and hand the gun over to Stolpa. She further testified that

after moving out of Stoipa's house on February 3` or e of 2011, she received a text

message from Stolpa.

{1[50} aeTaorah Ltyers,

at one time. She test€ied tttat

According to Myers, Sto" took

December 30, 2010 and dropped t1ern of,

garKasmokincr Wnen asked if,

i i^ appellant was her stepson

in December of 2010.

Kassier to Bruce Campbell's on

-retumed on hlPw YeaC's

smie powd in t^ the evening of December 31,

2010, she saw a gun, Myers testit-ted ttrai she saw a gun down appellant's pants while

appe{iant was siging on Uie sota- Appeiwd ,rted to be asiei;p_ Aner Stoipa woke

appellant up, he went iu aw tt•Ee gar{ tix app; ,`^y twe,cjr re-tinutes to half an hour.

{151} Myers tisFoed that, on ' ry 't. 2az' 1, appellant and Kassier were not

tafking to one another, but ti-,at later in -tha evenirg, st-e- tieard their voices raised. She

testified that her 13 year old granddaughter tcid her that she had seen appellant hit

Kassler. Later, when Myers was out in the garage with Stolpa, appellant came into the

Mbrrow County App. Case No. 2011 CA0006 13

garage and took a black bag out of a Trans Am parked in the garage. Myers testified

that appellant then went into the house and that she observed him loading a gun at the

k.itchen *.able_ According to Myers, appeiiant said that he was going to find Kassfer and

snoot. he:r and then himseSf_ She testified that he also said that he was not going to go

ba& to prison.

{1152} At the conclusion of the evidence and the end of deiibera6ons, the jury, on

March 17, 2011, found appellant not guilty of domestic violence, but guilty of having a

weapon while under disability. The charge of assault had been d'asmissed upon

appeUee's motion due to lack of evidence_ Pursuant to a Judgment Entry f7ed on May 5,

2011, appeflant was sentenced to five years in prison.

sP3} AppeAant now raises the foftowing assignments of error on appeat.

`l. APPELLANT WAS DEPRIVED OF HiS CONFRONTATION R#C;tITS

UfiifIER T I-tE SIXTH AMENDMENT (AS APPLfED THROUGH THE FOURTEENTH

AMENDMENT) AND SECTION 10, ARTICLE I OF THE OHIO CONSTtTU T iON W

T'rE T RL4L GOURT REFUSED TO ALLO@1V AFPELLAN T TO PRESENT A DEFENS=

Sa-i4tAriNG THAT THE PROSECt1TEON'S PRIMARY WITNESS WAS BLASED,

PREJUDICED, AND HAD A MOTIVE TO LIE.

fV-Tj "ii. APPELLANT WAS ^vErni'v'ED OF niS Cv^NFRONTATIaN RIGHTS

UNDER THE SI^rE AfiREND`nliEN T(AS APt=LIED THROUGH THE FO`v`RTEE.rJTH

A' o AND SECTION 10, ARTIGLE 1 {3F Ti-IE OHfO CtJNSTITL; €?vAi wi-IIEN

FHE ,[AL COURT REFUSED TO ALLOVL' APPELLANT TO PRESENT EVIDENCE

OF ENCONSISTEN T STATEMENTS BY THE PROSECUTION'S MAIN WITNESSES IN

REGARD TO A MATERIAL ISSUE GOING TO BIAS.

Morrow County App. Case No. 2011 CA0006 14

{¶56} "Ill. APPELLANT WAS DEPRIVED OF HIS STATE AND FEDERAL DUE

PROCESS RIGHT TO A FAIR TRIAL WHEN THE PROSECUTION WAS ABLE TO

ELICIT PREJUDICIAL INFORMATION ABOUT APPELLaNT'S PRIOR MURDER

CONVICTION IN VIOLATIOP. OF E^110R 40cqB)

{1157} "[V. APPELLANT 'WA.S D-ENEtD =1fS STATE AND FEDERAL

CQNSTITUTIONAL RIGHT TO THE EFFEC T IVE A-15TANCE OF COUNSEL BY

COUNSEL°S FAILURE TO PROPER.L.Y 08.1€C-T TO ,NAl0M1SSfBLE EVIDENCE.

{1[58} °V. APPELLANT WAS DEf*f'fED HIS STATE AND FEDERAL

CONSTITUTIONAL RIGHTS TO Dt,t PROCESS AND A FAIR TRIAL BY THE

CUMULATIVE EFFEGT OF THESE ER:!?f` icS'

{ff5g} AppeliaM in his assk.-^ oi ==. mgues ti'tat he was deprived of

his confrontation rights under the Sbt, "- a and Section 10, Article 1 of the

Ohio Consbtution when he a.s ncr penr&ed m srmw titat iffra Stolpa, his haif-sis3er,

was biased against him and had au.° to ke_

{qt60} Tr'ral courcs are grarwd broai dscrefim v4Lh respect to the admission or

exclusion of evidence at trial. State v Sage, 31 Ohio SL3d 173, 180, 510 N.E.2d 343,

348, (1y87). Thus, an appellate coLfft wM -not reverse a trial cdurt's ruifng absent an

abuse of discretion. Siate v^.:, :7 Ot4o St3d :i=-Z, 348. 2002-f3hio-6658, 7

N.E_2d 186, 1(75_ "fhe term 'abuse ofcar.-mes rtiore than an error of law or

judgment; d inipfes that the cm-qt's attitucbe is unreasonable, arbitrary or

unconscionable." Blakemore v_ Blakerrrora, 5 Ofno Sr-3d 217, 219, 450 N.E_2d 1140.

(1983). Absent an abuse of discretion resulting in material prejudice to the defendant, a

Morrow County App. Case No. 2011 CA0006 15

reviewing court should be reluctant to interfere with a trial court's decision in this regard.

State v. Hymore, 9 Ohio St.2d 122, 224 N.E:2d 126, (1967).

,T61} Cross-examination is the primary means by which the credibility of a

witn^ess is tested. Davis v" Alaska, 415 U.S. 308, 316, 94 S.Ct 1105, 39 ! Ed2d 347.

(1974). Exposing a witness' motivation in tesvfying is a proper and important function of

the riaht of cross-examination. Greene v. McEfroy, 360 U.S. 474, 496, 79 S.Ct. 1400.

1413, 3 L_Ed.2d 1377 ( 1959).

jff62} Evid. R. 403(A) provides as follows:

M3} °[a]Ifhough relevant, evidence is not admissible if its probative value is

substarstialiy outweighed by the danger of unfair prejudice, of confusion of the issms. or

ofmisieading the jury."

} In the case sub judice, appeRwA sought to cross-examine i x;a Stolpa to

str€w that she was biased against him because he was pianning to testify at her divorce

pm.ceecrings that she had falsety accused her husband of domestic violence agairist

tiw daughter" Appellant sought to iritroduce such evidence to show that Stoipa was

biased againsi him and had a motivation to lie about appellant being in possession of

the gun The trial court refused to let appellant cross-examine Stolpa about the divorce

proceedings nnding that the same was not relevant

,P5} At trial, appellant proffered Sttrdpa's testimony. We note ttmt Stolpa,

dixii-S vdr dire outside the preservce of t^`3e jury, test^'red that she wr^ e^z

apn="^^^t had been subpoenaed to testify against her in court in the dorresuc n^a^er"^ -^ _

; h.m, appetlant failed to show that Stolpa was biased and was trying to get back at

appellant by testifying against him. We also concur with appellee that whether or not

liVorrow County App. Case No. 2011 CA0006 16

domestic violence occurred within Stolpa's home was not relevant to the issues in this

case. Finally, we find tnat; assumina, 3rguendo; that the tl?al court erred in notadmitting

the proffered evidence, such error was harrnk.ss based on the evidence. Stolpa, Bruce

Camgbel} and Deborah AAyers ai3 connected -ntt^ 'J^.e gun. DAoreover. Kassler, in

her written statement _W_poi^cjce, stated sounds and knew that

appeitant had a gun. : As is stated aboue. Carr;pbeti testi"ed that on approximately

February 7, 2011, he received an unsigned tetW w-ib appellant's handwrifing. The

letter, which was marked as an Ext&it, asked Carrzpbefl not to say anything that was

going to damage appetlant's case. F"€nar7y, duriig trial, a recorded teiephone call from

the jail from appetlarff to Campbeff was adnifltad Cxh-ing the cafi, appellant asked

CampbeR about the gun a

Stolpa. Appetlant, dudrtg the cal, mo Car=b-A not

Cznq)bel had retumed the same to

tfzem talk him into testifying

and asked Campbeg not to put ffe cun. in aopeFx-bifs hands. Appeffate also asked

Campbell not to tum on him and Campbed rrapdea 'tiat he would do what he could, but

that he wans't going dcwr-

1116131 Appetfant°s iirst assigrirrient of esror is, tf- e, overruied.

{jj67} Appellant, in his second ALof errw, arg-ues that he was deprived

of hus right to confrontafian when t`r^ triat amrt ° ,-- his ricitr to cross-examine Kassier

about a conversation ^ alegedtv3verf-m-audd =eavz---. Stv^ and Bruce Campbelt_

{T68} During trial, Kassler was asked wt--diner or not she had witnessed any

conversation between Stolpa and ErLice Campbell a,svolving a gun. 6oth Stoipa and

Campbell deni^aving any discussions abouf selling the gun After she testified that

Morrow County App. Case No. 2011CA0006 17

she heard Stolpa talk about selling her gun after appellant was arrested, appellee

oi^ected on the basis of hearsay -and the objection was sustained. The trial, coun:

ordered the jury to disregard such statement. Kassier was later asked whether she

- Stolpa and Campbell discussing tHhe gun on January 2, 2011 _ After ap_oettpv

oi:so-cmd on the basis of hearsay, the court sustained the objection.

;jj69} Kassier then testified that, on January 2, 2011, and then about a week

after that, she witnessed a conversafion between Campbell and Stolpa amout a gun_

T'ne conversation on January 2, 2011, occurred while she was at CampbeN's house.

She testified that after she heard the conversation, she "[a]bout had a stroke' and

itroved out of Stotpa's house_ Transcript at 512.

{170} Subsequently, the €oikawing d3scussion took place on the reoord:

VE71} 'iblft DESMOND: Did I say tl-,at Kara Kassier wou{d tesfffy ttrat she :reard

T€na Stolpa and Bruce Campbeg talking about the sale of this gun? Did [ say t#tat?

N72} "MS. STEFANCIN: I thought she testified to that.

fft-3} `THE COURT: She started to.

,Tf 4} "MR. DESMOND: Then yoji stopped her.

t175} "THE COURT: Yeah_

j'T6} "MS. STEi=ANCiir We had a biinch of side bars up here y^terday_ i^rs

tryiiag to remember.

jt[77, "MR_ DESMOND: Let me try to clear it up- She would haue ^'ed. '€ia.:

she been allowed to, that she witsessed --

fg78} "THE COURT: tt vuas a relevancy issue because it took -- the

conversation took place from what I understand substantially later.

Viorrow County App. Case No. 2011CA0006 18

{179} "MS. STEFANCIN: Much later.

{180} "THE COURT: After the ^ncident.

{1181} "MS. STEFANCIN: She said it was after a week or so.

{¶82} t HE CC3UR T: Aftec the?".

{183} `MS- STEFANCIN: Yeah, she said sk-- heard the conversation a week or

so after and that's why you weren't ai-iowed to get into the details.

{¶84} "i4tR_ QESAAOND: Did I say tl^.ut she heard them talking about the sale of

this gun?

{¶85} `THE i O€aRT: Yes.

{1186} "W. i}ESMCND: Qkay_ Then i dorft have any proffer_

(1{87} "THE CWR T: Rk*Yf ' T -aii s5, ^-_

{%88} Appertlaas€t riow .,riamminss jik ic- vms oarnea his rigttt to confrontation

when the trial court rG,rsed to pa-mk hwr tc qt Kass.ier about the specific detab

of the conversa'uon thkat she overfieafd^ A ....notes fnat-both Campbefl and Stolpa

denied that they d'is:s.r^-ed seEng the gLm, am argLes fnat the issue of how and when

Campbell came to possess the cui was ge^rrriarz to thw- case_

{1189} We note that such cmversation affegedfy occurred approximately a week

a;ier t,Fe i1-1cident ir^ iiis case_ T;^e was r:o p:aaffer as to what iCassler's testimony

;r,would have been had appegw-n t^^ ;amii^^ to crass--=..xa,mune Kassler in greater

detail about the corrrersaiion- F€^erm^cr-- asmmtkxj, arguendo, that the trial couat

should have atlowed [Ca-^Ier to msffty a::oti 2-e speci,'c details of the conversation, we

find such error harmless based on the ove;wiietmirig ev-icience of appeflant's guilt.

{¶90} Appellant's second assignment of error is, therefore, overruled.

D3orrow County App. Case No. 2011 CA0006 19

{¶91} Appellant, in his third assignment of error, arguesthat he was denied of

h:s right to a fair trial when appellee was able to elicit information about appellant's csricr

r-L=r conviction. Appeflant's murder conviction was the basis for the weaoon unc^t-

disaoifity charge.

{ff92} in the case sub judice, appellant offered to stipulate to having a prior

offense of violence, but appellee indicated that it had a right to refuse such stip,station

because the prior conviction was an element of the offense of having a weapon while

under disability. Appellee sought to prove appellant's prior conviction through testikriony

about the nature of appellant's prior conviction and a certified copy of the record of

sat's prior murder convicfion. Appegee further argued that appzltant's

relevant because it revealed why the witnesses in this case were aft?jd of

_^ and that because of appegarXs prior murder conviction, the victims took appeLa.s

threats seriously.

{183} The trial court found that the probative value of appeliarXs m€y,*der

ic;ion was outweighed by the prejudiciW value and advised the parties that ti•te pnior

conviction could not be referred to as a murder conviction. The tria4 court further

ised the parties that it was not prohibiting appenee from deiving into the details of

t^-- rn;--der convicfion gif it is necessary, under 404(B) floor ti:; jury to unders;ar•pi s

:og on in the minds of those foiks back at that t?ane." Transaipt a-E 184. The

court vvent on to indicate that if appefiee felt that it needed to get into the details of the

murder conviction at trial, it could request admission under Evid.R. 404(R) and the

court would make a ruling. Although the trial court ruled that appellee could not talk

Oorrow County App. Case No. 2011 CA0006 20

about murder during opening statements, when asked by appellee, the trial court stated

that appellee could indicate that the act of violence occurred in 1990. Appellant did not

object.

{994} Appettant now m:in*ain-s tiat "To?espite the trai court's ruling, and without

first requesting admission under Evid.F- 4s;4t-13; -ute prosecu#ion, managed to

emphasize the severity of jappea`lanYs} prior c^-zviction on multiple occasions." Appellant

notes that, da^ririg opening s#a#etTents, t-he prDsecution stated that the offense of

violence occurred in 1990 and that appeffant had spent 18 years in prison for the prior

offense before being paroled. Appelarit fur-i,`er notes that, during two other occasions

during trial, the prosecufion reirkm'ed the jwy ttmt appellant had spent 18 years in

prison.

{4g95} -While appeflaM in hi-c

right to a fair trial when the prosem6m

his prior murder convicfion, we rotB ftiat.

pues that he was denied his

eficit prejudicial information about

pdar €xrtnriction was never referred to

drr€sng trial as a m*.rrsier corrixiimL We krifier note that appeHant did not object when

the trial court ruled that the rroseagim coLdd i ^ ftat the act of violence occurred

in 1990, so a plain error analysis appGes- in ordw to prevail under a plain error analysis,

appeitant bears the burden of ` g that U-ie ouutcome of the triai ciear'iy wouui

have been different buf for the v- `r ur^aa, ^ E^t^€o St 2d 91, 372 N.E.2d 8v4,

(1978). Notice of pkthi error 'is ;;^ t,e t' _wt-. tie utn€si caution, under excepfional

circumstances and only to prevent amariq-est t€eiscarriage of jusfice-" Id. Iff three of ta e

syifabus.

1! gorrow County App. Case No. 2011CA0006 21

ffi6} As is discussed above, there was overwhelming evidence of appellant's

gui4t Because there was overwhelming evidence, any reference to appellant's prior 1$

ye.ar prison tem did not violate appelEant's right to a fair trial.

{j}97} Appe[(ant's third assignment of error is, therefore, overruled.

11J

M98} Appellant, in his fourth assignment of error, contends that he was denied

the effective assistance of trial counsel due to counsel's failure to object when ttc-

prosecution informed the jury that appeHant had spent 18 years in prison for his p

on.

{1199} To show ineffective assistance of counsel, appellant must satisfy a two-

praig test. Str<rckfarad v. Waserirzgton, 466 U-S. 668, 669, 104 S.Ct 2052 ('1984)_ FFSL

€ea must show that his trial counsel engaged in a substantia9 vioiation of any essez-631

his crient State v 8rao7ep, 42 Ohio St3d 136, 141, 538 PI.E.2d 373 (19WI;

€uotEng State v_ Lytle, 48 Ohio St2d 391, 396, 358 N.E.2d 623 (1976). Second, he r aus,

staw that his trial counsel's ineffecftveness resulted in prejudice_ Sracgey, art u1-142,

qLtotng LyWe, at 396-397. "Prejudice exists where there is a reasonable p l-V tot

the trial result would have been di7serent but for the alleged deficiencies o€ counsei.'

°-acffay,I three of the syllabus-

^i vQ}iia`v^iig overruled appeftnts third asSignmveeiC ve error, we

de•^-e counseY s perromlance was not deficient

M101}Appeftartfs fourtt: assigruneri of error is, therefore, ove

ft tvorrow County App. Case No. 2011CA0006 22

11 (¶102}!n his fdth assignmenf of error,. appel{ant argues that, in light of the

foregoing assignrrtents of error, the mmxdaCve effeot of those errors denied him due

process. Because we firid no effw wth respect m assxwmients I through N, we find no

cximuiative error.

{11103}Appelanf's ftfth assommt of ermr is, fherefore, overruled.

{Iff104}AooordMgiy, ffm Mgment of ft Morrow County Court of Common Pleas

is aEfimted.

8y: Edwards, J.

Delaney, P.J. and

Farmer, J. concur

3lJDGEs