COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 67490 AND 67491 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY -vs- : AND : OPINION DAMON MITCHELL : : Defendant-appellant : : DATE OF ANNOUNCEMENT : OF DECISION : DEC. 5, 1996 CHARACTER OF PROCEEDING : Criminal appeal from Court of Common Pleas : Case No. 303508 JUDGMENT : Affirmed; remanded for resentencing. DATE OF JOURNALIZATION : APPEARANCES: FOR PLAINTIFF-APPELLEE: FOR DEFENDANT-APPELLANT: Stephanie Tubbs-Jones, Esq. Cuyahoga County Prosecutor Donald Green, Esq. By: George M. George Assistant Public Defender Assistant Prosecuting Atty. 1200 West Third Street, N.W. The Justice Center 100 Lakeside Place 1200 Ontario Street Cleveland, Ohio 44113-1569 Cleveland, Ohio 44113 -2- HARPER, J.: On November 3 and 4, 1993, a Cuyahoga County Grand Jury issued two indictments against defendant-appellant, Damon Mitchell. The charges related to incidents that occurred on September 20, 1993 and October 19, 1993. In CR-302189, appellant was charged with having committed four offenses on September 20, 1993: breaking and entering, R.C. 2911.13; theft, R.C. 2913.02 (two counts); and possession of criminal tools, R.C. 2923.24. In addition to all counts carrying a violence specification, each of the two theft counts carried two furthermore clauses. Regarding CR-303508, appellant allegedly committed the offense of receiving stolen property, R.C. 2913.51, on October 29, 1993. This charge carried a violence specification and two furthermore clauses. Trial by jury on the indictments commenced on April 13, 1994. At the close of the state's case, the trial court granted appellant's Crim.R. 29 motion on the third and fourth counts of CR- 302189 (theft and possession of criminal tools). The trial then continued on the remaining charges of breaking and entering and theft as alleged in CR-302189, and receiving stolen property as alleged in CR-303508. After the trial court denied appellant's renewed Crim.R. 29 motion at the close of the defense, the jury subsequently rendered guilty verdicts on these counts. The jury also heard evidence regarding a third indictment issued against appellant in CR-303387 for events that occurred on -3- October 18, 1993. The jury returned not guilty verdicts on all counts of this indictment. The trial court sentenced appellant in CR-302189 to consecutive terms of twelve months for breaking and entering, and eighteen months for theft. Appellant was sentenced in CR-303508 to a term of twelve months, to be served consecutively to the sentence imposed in CR-302189. The sentences reflect that appellant's 1 convictions were deemed as fourth degree felonies. This appeal 2 followed with appellant claiming as error: APPELLANT'S RIGHT TO DUE PROCESS OF LAW, AS GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS, WAS DENIED WHEN HE WAS CONVICTED OF AND SENTENCED FOR FELONY OF THEFT AND THE FELONY OF RECEIVING STOLEN PROPERTY ON EVIDENCE WHICH WAS INSUFFICIENT AS A MATTER OF LAW. Appellant does not challenge the sufficiency of the state's evidence as to whether he committed the offenses of theft and/or receiving stolen property. Rather, he submits that the state failed to sufficiently prove the prior convictions embodied in the indictments' furthermore clauses. Appellant thus argues that he was denied due process upon conviction and sentencing for fourth degree felonies versus first degree misdemeanors. 1 Assuming appellant was properly convicted of two fourth degree felonies, he was subject to indefinite terms of imprisonment since the corresponding indictments listed R.C. 2941.143 violence specifications. R.C. 2929.11(A), (B)(7), (D) and (G). See State v. Witwer (1992), 64 Ohio St.3d 421. R.C. 2941.143 was repealed effective July 1, 1996. 2 Appellant's appeals from his convictions in CR-302189 and CR-303508 were assigned, respectively, App. Nos. 67490 and 67491. This court sua sponte consolidated the appeals on October 23, 1995. -4- The state neglects to counter appellant's position in its appellate brief. Instead, the state advances a blanket assertion that the jury had more than ample evidence to convict appellant of all of the charges. Appellant's convictions for theft and receiving stolen property were both based on goods with a value of less than $300. Generally, these offenses constitute misdemeanors of the first degree that carry a sentence of not more than six months. See R.C. 2913.02(B); 2913.51(B); 2929.21(B)(1). The theft and receiving stolen property offenses are elevated to fourth degree felonies, however, when the defendant has a prior theft conviction. See R.C. 3 2913.02(B); 2913.51(B). The theft and receiving stolen property charges lodged against appellant each included two furthermore clauses. Therefore, even though the value of the stolen property in each instance was below $300, appellant was subject to an enhancement under R.C. 2913.02(B) and 2913.51(B). In CR-301289, the furthermore clause provides that appellant was convicted of attempted grand theft on July 15, 1992 (CR-281121) and breaking and entering on March 7, 1988 in (CR- 221666). The furthermore clause in CR-303508 set forth appellant's July 15, 1992 conviction for receiving stolen property (CR-278000) and a May 29, 1991 conviction for theft (CR-263241). 3 The amendments to both of these sections, effective July 1, 1996, elevated the minimal value of goods from less than $300 to less than $500, and deleted the prior conviction element as a means to enhance the degree of the offenses. -5- Prior to trial, appellant stipulated to five prior convictions, including the four convictions listed in the furthermore clauses. He also admitted to three of the four prior convictions during direct examination. The issue presented by this appeal is whether these stipulations and "evidence" supplied sufficient evidence to convict appellant of the higher degree offenses. The standard of review upon a question of the sufficiency of the evidence is provided in State v. Jenks (1991), 61 Ohio St.3d 259, paragraph two of the syllabus: An appellate court's function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant's guilt beyond a reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. (Jackson v. Virginia [1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, followed.) The Supreme Court of Ohio, in State v. Henderson (1979), 58 Ohio St.2d 171, addressed the issue of whether the state carries the burden of proving prior offenses as an element of the crime charged in an indictment. Henderson was charged with the grand theft of a radio, valued at less than $150, as a result of a prior conviction for receiving stolen property. The prior conviction raised the offense from a petty theft to a felony of the fourth degree under then existing R.C. 2913.02(B). The issue resolved by the Supreme Court was the General Assembly's intent in including -6- the phrase "previously been convicted of a theft offense" in that section. Id., 172. The Henderson court first recognized the circumstances under which a more serious offense arises under R.C. 2913.02(B). These circumstances are: (1) the value of the property is over $150; (2) the involvement of R.C. 2913.71 property; and (3) a prior conviction for a theft offense. Id., 173. The Supreme Court then turned to State v. Gordon (1971), 28 Ohio St.2d 45, wherein it determined that where a prior offense is an element of a subsequent crime, the state carries the same burden of proof with regard to this element as any other element of the offense. Id., 48. The Henderson court then adopted the reasoning set forth in Gordon: "We reach the same result here. The defendant faces a possible felony conviction for a second offense, while a first offense is punishable only as a misdemeanor. The state must be put to its proof regarding the identity of the accused in the prior offense and must demonstrate the fact of such prior offense beyond a reasonable doubt. The jury must then find that fact to be established and also convict the defendant of the second violation, in order for the court to impose the greater punishment." That same reasoning is equally pertinent in the present appeal, and we conclude, therefore, that a prior conviction for purposes of R.C. 2913.02(B) is an element of the offense of grand theft and must be demonstrated beyond a reasonable doubt. (Emphasis added.) Henderson, 173, partially quoting Gordon, 48. See State v. Fittro (1993), 66 Ohio St.3d 16; State v. Allen ( 1987), 29 Ohio St.3d 53; State v. Ireson (1991), 72 Ohio App.3d 235; State v. Swiger (1987), 34 Ohio App.3d 371. -7- Henderson, Allen and Fittro make clear that if a prior offense only enhances the penalty and not the degree of the offense, the state neither must allege the prior conviction in the indictment nor prove it as a matter of law. Allen, 55. However, when the prior conviction is a degree-enhancing element versus a sentence- enhancing element, the state is required to prove its existence beyond a reasonable doubt. Id., 54. See State v. Stevenson (Oct. 17, 1996), Cuyahoga App. No. 70137, unreported. R.C. 2945.75(B) establishes the requirements for the prosecution when it is required to prove the existence of prior convictions. This section provides: (B) Whenever in any case it is necessary to prove a prior conviction, a certified copy of the entry of judgment in such prior conviction together with evidence sufficient to identify the defendant named in the entry as the offender in the case at bar, is sufficient to prove such prior conviction. Enhancement is precluded in the present case under R.C. 2913.02(B) and 2913.51(B) unless the state proved appellant's prior convictions beyond a reasonable doubt by producing evidence in addition to certified copies of the prior judgment. See State v. Day (1994), 99 Ohio App.3d 514; State v. McCoy (1993), 89 Ohio App.3d 479. No such evidence was introduced by the state, and appellant's stipulations fail to cure this deficiency given the facts of this particular case. In State v. Riley (1994), 98 Ohio App.3d 801, the defendant was charged with aggravated trafficking with a prior drug offense conviction. Prior to trial by jury, Riley requested in a motion in -8- limine that the state not introduce evidence of the prior conviction at trial. He then stipulated to the prior conviction outside the presence of the jury. Upon conviction, the trial court sentenced Riley on a second degree felony versus a felony of the third degree. Id., 803-804. Riley argued on appeal that Allen required the state to prove the prior conviction at trial, an argument not contested by the prosecution. The state, however, submitted that the appellant's stipulation effectively removed the issue of the prior conviction from the jury's consideration. Id., 804. The Court of Appeals for Montgomery County rejected this submission, finding that Riley could not waive his right to jury trial with respect to the prior conviction without the execution of a written waiver. Id., citing R.C. 2945.05, State v. Tate (1979), 59 Ohio St.2d 50 and State v. Smith (1987), 38 Ohio App.3d 149. The Riley court nonetheless found this error to be harmless by reasoning that if the jury learned of appellant's stipulation, it would have found in the state's favor. Id., 805. We find that Riley is not controlling for the following reason. The Supreme Court reversed State v. Fittro (May 16, 1991), Cuyahoga App. No. 58227, unreported, a case where this court held that a trial court has no discretion to deny a motion to bifurcate regardless of whether the prior conviction enhances the degree of an offense. See Fittro, 66 Ohio St.3d 16. Bifurcation under R.C. 2941.143 is thus not appropriate in cases where a defendant is subject to enhancement of the degree of -9- the charged offense based upon a prior conviction. Rather, the trial court has the authority to reject stipulations of prior convictions in these cases. See State v. Salazar (Dec. 13, 1995), Hamilton App. No. C-950047, unreported; State v. Justine (Jan. 19, 1994), Medina App. Nos. 2248, 2250, unreported; State v. Perkins (July 29, 1992), Summit App. No. 15438, unreported; State v. Carter (July 29, 1992), Summit App. No. 15425, unreported. The jury in a jury trial, not the trial court, must determine the existence of a prior conviction as a factual matter. See State v. Furlow (1993), 90 Ohio App.3d 699; State v. Ball (Feb. 17, 1994), Cuyahoga App. No. 64668, unreported; State v. Thornton (Nov. 4, 1993), Cuyahoga App. No. 65139, unreported; State v. Craig (Jan. 24, 1991), Cuyahoga App. No. 58027, unreported. In State v. Breaston (1993), 83 Ohio App.3d 410, the defendant was charged with and convicted of carrying a concealed weapon, a felony of the third degree under R.C. 2923.12(D) since the offense involved a loaded firearm. Id., 411. Breaston argued on appeal that his conviction was erroneous because the jury was not called upon to separately determine the factual issue of whether the firearm was indeed loaded. Although the indictment listed "loaded shotgun," the verdict form merely set forth "as charged in the indictment" when describing the offense. Id., 412. The verdict form provided neither the degree of the offense nor the additional element. Id., 413. The Court of Appeals of Franklin County first looked to R.C. 2945.75(A) which reads in pertinent part: -10- (A) When the presence of one or more additional elements makes an offense one of more serious degree: *** (2) A guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged. The Breaston Court then acknowledged that strict compliance with this section is not mandatory as a result of State v. Woods (1982), 8 Ohio App.3d 56. Pursuant to that decision, reversible error is not present if the verdict forms incorporate the language of the indictments, evidence overwhelmingly shows the presence of aggravating circumstances, and the defendants never objected to the form of the verdicts. Id., 63. Woods was later interpreted to impede reversal where the verdict forms state "as charged in the indictment"; the indictment expressly sets forth the elements of the greater offense; and the trial court reads the indictments to the jury. See, e.g., State v. Pusey (July 11, 1991), Shelby App. No. 17-90-1, unreported, motions for leave to appeal denied, 61 Ohio St.3d 1469, motion for rehearing denied (1992), 62 Ohio St.3d 1497. The Breaston court found that while a defendant is normally required to apprise the trial court of error, the prosecution is charged with a similar duty where the error affects the degree of the offense, but the verdict form merely indicates a finding of guilty as to the lesser degree of the charged offense. Id., 413. The prosecution carries the burden to raise this type of error in -11- the trial court since it is an error that prejudices the prosecution, not the defense. Id. The trial court informed the jury that Breaston was charged with carrying a concealed weapon, specifically a loaded firearm. However, the verdict forms did not list this element which raised the offense from a first degree misdemeanor to a third degree felony. Under these circumstances, Woods is distinguishable and Breaston could only be found guilty of a first degree misdemeanor. Id., 414. See, also, State v. Gleason (Apr. 3, 1996), Summit App. No. 17311, unreported; Pusey. In the within case, the verdict forms for the relevant offenses in CR-302189 and CR-303508, i.e., theft and receiving stolen property, respectively set forth "as charged in Count Two of the Indictment" and "as charged in the Indictment." The specified counts included the furthermore clauses, but the trial court, without identifying the prior convictions, instructed the jury that prior conviction evidence could only be used to test credibility or the weight to be given the evidence. The jury was thus specifically advised against using prior conviction evidence to find appellant guilty of greater degree offenses. The jury was simply called upon to determine the value of the property taken by appellant, specifically, in each instance listing on the verdict form that it was less than $300. Appellant was consequently only convicted of two first degree misdemeanors, not two felonies of the fourth degree. Jenks; Allen; Breaston; Woods. -12- Judgment is affirmed as to the findings of guilt of the underlying offenses, but reversed as to the sentences imposed by the trial court on appellant's convictions for theft in CR-302189 and receiving stolen property in CR-303508. This cause is remanded for resentencing for first degree misdemeanors on these two convictions in accordance with R.C. 2929.21(B)(1). Judgment accordingly. -13- It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Cuyahoga County Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. LEO M. SPELLACY, C.J., AND DAVID T. MATIA, J., CONCUR. JUDGE SARA J. HARPER N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc. App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E), unless a motion for reconsideration with supporting brief, per App.R. 26(A) is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .