[Cite as State v. Overton, 2017-Ohio-8389.]

COURT OF APPEALS 

STARK COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Craig R. Baldwin, J. 

 : Hon. Earle E. Wise, Jr., J. 

-vs- : 

 : 

JONAS L. OVERTON : Case No. 2016CA00224 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Court of Common 

Pleas, Case No. 2016CR0894 

JUDGMENT: Vacated and Remanded 

DATE OF JUDGMENT: October 30, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

JOHN D. FERRERO BRADLEY R. IAMS 

Prosecuting Attorney SAMUEL J. FERRUCCIO, JR. 

By: KATHLEEN O. TATARSKY JEFFRY V. SERRA 

Assistant Prosecuting Attorney 301 Cleveland Avenue NW 

110 Central Plaza South, Suite 510 Canton, OH 44702 

Canton, OH 44702-1413 
Stark County, Case No. 2016CA00224 2 

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. 
Stark County, Case No. 2016CA00224 3 

{¶ 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." 
Stark County, Case No. 2016CA00224 4 

III 

{¶ 10} "THE JURY'S VERDICT WAS CONTRARY TO THE MANIFEST WEIGHT 

OF THE EVIDENCE BECAUSE THERE WAS INSUFFICIENT EVIDENCE OF 

CONSTRUCTIVE POSSESSION OF THE DRUGS OR GUN." 

I 

{¶ 11} In his first assignment of error, appellant claims the trial court erred in 

denying his offer to stipulate to being under disability and instead admitted evidence of 

his prior conviction and indictment. We agree. 

{¶ 12} Appellant was convicted of having weapons under disability in violation of 

R.C. 2923.13(A)(3) which states the following: 

(A) Unless relieved from disability under operation of law or legal 

process, no person shall knowingly acquire, have, carry, or use any 

firearm or dangerous ordnance, if any of the following apply: 

(3) The person 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 or has been adjudicated a 

delinquent child for the commission of an offense that, if committed by an 

adult, would have been a felony offense involving the illegal possession, 

use, sale, administration, distribution, or trafficking in any drug of abuse. 

{¶ 13} On October 24, 2016, appellant filed an offer to stipulate "that on May 9, 

2016, defendant was a person 'under disability' for purposes of Ohio Revised Code § 
Stark County, Case No. 2016CA00224 5 

2923.13." On same date, appellant filed a motion in limine to exclude evidence of his 

2005 conviction for trafficking in cocaine. On the morning of trial, the trial court denied 

the stipulation and motion as follows (T. at 9): 

As I had indicated previously, it's the Court's position that the State 

is not required to be prevented, necessarily, from admitting the prior 

conviction in the form of a judgment entry. I understand that it's the 

Defense's position that you have agreed to stipulate to the prior conviction, 

but it is - - it remains the Court's position that that decision, as it is an 

element of the offense, that the State is permitted to prove that element. 

{¶ 14} The trial court stated it would provide to the jury a limiting instruction on 

the use of the prior conviction. T. at 10, 13. 

{¶ 15} At the conclusion of the evidence, the following exchange occurred 

between counsel and the trial court (T. at 375-376): 

MS. STARRETT [PROSECUTOR]: Okay. State's Exhibit 1 will be - 

THE COURT: I have not seen 1, so I just need to see 1. That's the 

only one - - 

MS. STARRETT: That would be the prior conviction that defense 

has stipulated to the authenticity of. 

THE COURT: Have you all seen the copy that is being submitted? 

MR. COCOVES [DEFENSE COUNSEL]: Yes. 
Stark County, Case No. 2016CA00224 6 

THE COURT: And no objection? 

MR. COCOVES: No. 

THE COURT: Okay. 

* * * 

THE COURT: All right. Let me hold on. 1 will be admitted. 

{¶ 16} State's Exhibit 1 not only included the judgment entry of appellant's 2005 

prior conviction, but also the four-count seven-page indictment "which included several 

charges for which he was never convicted – including the destruction of evidence, 

corrupt activity, and having a gun." Appellant's Brief at 10. 

{¶ 17} We note the admission or exclusion of evidence lies in the trial court's 

sound discretion. State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 

528; State v. Sage, 31 Ohio St.3d 173, 510 N.E.2d 343 (1987). In order to find an 

abuse of that discretion, we must determine the trial court's decision was unreasonable, 

arbitrary or unconscionable and not merely an error of law or judgment. Blakemore v. 

Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983). 

{¶ 18} Evid.R. 403(A) states: "Although relevant, evidence is not admissible if its 

probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury." 

{¶ 19} Appellant argues the admission of the judgment entry of his prior 

conviction and the four-count seven-page indictment constitutes unfair prejudice. In 

support of his arguments, appellant cites the recent Supreme Court of Ohio's decision in 
Stark County, Case No. 2016CA00224 7 

State v. Creech, ___ Ohio St.3d ___, 2016-Ohio-8440, ___ N.E.3d ___. The Creech 

court at ¶ 36 explained "undue prejudice" as follows: 

" 'Unfair prejudice is that quality of evidence which might result in 

an improper basis for a jury decision. Consequently, if the evidence 

arouses the jury's emotional sympathies, evokes a sense of horror, or 

appeals to an instinct to punish, the evidence may be unfairly prejudicial.' " 

Oberlin v. Akron Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 743 N.E.2d 890 

(2001), quoting Weissenberger, Ohio Evidence, Section 403.3, at 85–87 

(2000). 

{¶ 20} The Creech decision was filed on December 29, 2016. We note the trial 

court did not have the benefit of the decision for the October 31, 2016 trial, although it 

was aware of the appellate decision out of the Seventh District. However, because "[a] 

new judicial ruling may be applied only to cases that are pending on the announcement 

date" and appellant's appeal was pending on December 29, 2016, we find the Creech

decision to be applicable to this case. State v. Evans, 32 Ohio St.2d 185, 186, 291 

N.E.2d 466 (1972).

{¶ 21} In Creech, the defendant was charged with three weapons charges for 

three different disabilities. The defendant offered to stipulate to any one of the three 

disabilities since only one weapon and one event was involved. The trial court denied 

the offer of stipulation, finding the state was not required to elect a disability or even 

accept a stipulation. Evidence of all three disabilities was presented to the jury via 
Stark County, Case No. 2016CA00224 8 

testimony and exhibits, and was mentioned during opening statement and closing 

argument. The trial court gave the jury a limiting instruction. The jury found appellant 

guilty of all three weapons counts and appellant appealed. On appeal, our brethren 

from the Seventh District in State v. Creech, 7th Dist. Jefferson No. 13 JE 41, 2014-

Ohio-4004, 18 N.E.3d 523, reversed the convictions, adopting the reasoning used by 

the United States Supreme Court in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 

644, 136 L.Ed.2d 574 (1977). The Supreme Court of Ohio affirmed the decision, also 

relying heavily on Old Chief.

{¶ 22} Old Chief involved nearly identical issues as in Creech and the case sub 

judice. In Old Chief, the defendant was charged with various charges involving a 

firearm, including assault with a dangerous weapon, as well as a violation of 18 U.S.C. 

922(g)(1) (the federal version of Ohio's R.C. 2923.13) which prohibits possession of a 

firearm by anyone "who has been convicted in any court of, a crime punishable by 

imprisonment for a term exceeding one year." The defendant offered to stipulate to the 

fact that he previously had been convicted of a crime punishable by imprisonment 

exceeding one year. He argued by so stipulating, evidence of the name and nature of 

the offense would be inadmissible under Fed.R.Evid. 403 because the probative value 

of that evidence would be substantially outweighed by the danger of unfair prejudice. 

The trial court disagreed and permitted the government to present evidence of the 

defendant's prior conviction. The jury was made aware that the defendant had been 

convicted of a prior assault resulting in serious bodily injury to the victim, and found the 

defendant guilty as charged. 
Stark County, Case No. 2016CA00224 9 

{¶ 23} After discussing unfair prejudice, propensity evidence, balancing the 

evidence, and the government's right to present its case, the United States Supreme 

Court held the following at 191: 

 Given these peculiarities of the element of felony-convict status and 

of admissions and the like when used to prove it, there is no cognizable 

difference between the evidentiary significance of an admission and of the 

legitimately probative component of the official record the prosecution 

would prefer to place in evidence. For purposes of the Rule 403 weighing 

of the probative against the prejudicial, the functions of the competing 

evidence are distinguishable only by the risk inherent in the one and 

wholly absent from the other. In this case, as in any other in which the 

prior conviction is for an offense likely to support conviction on some 

improper ground, the only reasonable conclusion was 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. 

{¶ 24} The Creech court painstakingly combed through the Old Chief decision, 

adopted its reasoning in Ohio, and concluded the following at ¶ 40: 

Pursuant to Evid.R. 403, in a case alleging a violation of R.C. 

2923.13, when the name or nature of a prior conviction or indictment 
Stark County, Case No. 2016CA00224 10 

raises the risk of a jury verdict influenced by improper considerations, a 

trial court abuses its discretion when it 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. 

{¶ 25} The Creech court at ¶ 39 also determined the limiting instruction "was 

insufficient to overcome the admission of inadmissible evidence of Creech's prior 

convictions and indictment. '[I]f there would be danger of unfair prejudice, evidence 

ordinarily admissible for a limited purpose should not be admitted even with a limiting 

instruction.' 1980 Staff Notes, Evid.R. 105." 

{¶ 26} In the case sub judice, the sole purpose of admitting the evidence (State's 

Exhibit 1) was to prove the element of appellant's prior conviction and indictment, as the 

prosecutor agreed not to bring up appellant's prior conviction during the trial other than 

stipulating to the authenticity of the exhibit. T. at 10-11. In this case wherein appellant 

was charged with the weapons count and two counts of possession of drugs, the jury 

was presented with a judgment entry showing appellant's 2005 conviction for two counts 

of trafficking in cocaine and a four-count seven-page indictment containing specific 

allegations of drug offenses, corrupt activity, and having a firearm, not all of which 

appellant was convicted of. Not only was the jury informed of the fact that appellant had 

a prior conviction for trafficking in drugs, the jury was informed he was convicted of two 

counts and the drug involved was cocaine. 
Stark County, Case No. 2016CA00224 11 

{¶ 27} In Creech, the defendant was not charged with any drug offenses, 

however two of the three weapons offenses included disabilities involving drugs. The 

Creech court reasoned the following at ¶ 37: 

Likewise, setting out Creech's felony drug offenses with 

specificity—that he had been convicted of possessing crack cocaine and 

had been charged with two counts of trafficking in cocaine (including one 

count of trafficking near a school)—also was potentially prejudicial, in that 

it put before the jury the name and nature of the drug offenses rather than 

the generalized description of the disability as set forth in the statute. 

Especially damaging is the indictment submitted to the jury, which alleges 

that Creech trafficked cocaine and that he had engaged in that felonious 

activity in the recent past—on one occasion, near a school. (Emphasis 

added.) 

{¶ 28} As in Creech, the indictment submitted to the jury in this case was 

especially damaging. Given the analysis and holding of Creech, we find "the name or 

nature of a prior conviction or indictment raises the risk of a jury verdict influenced by 

improper considerations" in this case, and therefore find the trial court abused its 

discretion in denying appellant's offer to stipulate to being under disability and instead 

admitted evidence of his prior conviction and multi-page indictment.1

 

1Appellee argues because defense counsel did not specifically object to the admission 

of the judgment entry and indictment of his 2005 conviction and in fact stipulated to their 

authenticity, appellant must show plain error under Crim.R. 52(B). Even under a plain 
Stark County, Case No. 2016CA00224 12 

{¶ 29} In adopting the reasoning of Old Chief, the Creech court acknowledged 

"the differences between R.C. 2923.13(A) and 18 U.S.C. 922(g)(1) in applying the 

holding to the Ohio statute." Creech at ¶ 35. The Creech court went on to reason the 

following: 

What mattered for purposes of the federal statute is that the 

defendant had been sentenced to a crime punishable with a sentence of 

more than a year in prison. The General Assembly in R.C. 2923.13 made 

some distinctions in determining the classes of crimes that should bar a 

convict from possessing a gun, but the classes are still broad. What 

matters to the General Assembly—and an element that the state must 

prove—is that the crime the defendant was convicted of was either a 

"felony offense of violence" or a "felony offense involving the illegal 

possession, use, sale, administration, distribution, or trafficking in any drug 

of abuse." R.C. 2923.13(A)(2) and (3). In regard to R.C. 2923.13, a 

stipulation or admission concerning the status element would necessarily 

include the fact that the defendant was under indictment or had previously 

been convicted of a crime falling within those broad categories. 

{¶ 30} Upon remand, the trial court should accept appellant's stipulation to be 

under the generalized description of the disability under R.C. 2923.13(A)(3), that he 

 

error analysis, we find unfair prejudice to appellant constituting "a manifest miscarriage 

of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of 

the syllabus. 
Stark County, Case No. 2016CA00224 13 

"has been convicted of any felony offense involving the illegal possession, use, sale, 

administration, distribution, or trafficking in any drug of abuse" if he chooses to so 

stipulate. The mere words "under disability" is not sufficient without the added 

generalized description of the disability of R.C. 2923.13(A)(3) as set forth in Creech. 

{¶ 31} Assignment of Error I is granted. Assignments of Error II and III are moot. 

{¶ 32} The convictions and sentence of the Court of Common Pleas of Stark 

County, Ohio is hereby vacated, and the matter is remanded to said court for further 

proceedings consistent with this opinion. 

By Wise, Earle, J. 

Gwin, P.J. and 

Baldwin, J. concur. 

 

 

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