COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69963 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION RICHARD BEAVERS : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 24, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-328489 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Defendant-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor JOHN F. CORRIGAN Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Plaintiff-Appellant: JAMES A. DRAPER Cuyahoga County Public Defender DANIEL SCULLY, Assistant 1200 West Third Street, N.W. 100 Lakeside Place Cleveland, Ohio 44113-1569 - 3 - O'DONNELL, J.: Richard Beavers appeals from a judgment of the common pleas court entered pursuant to a jury verdict finding him guilty of carrying a concealed weapon and having a weapon while under a disability. Each count contained a felony violence specification of appellant's 1982 sexual battery conviction. On the afternoon of August 19, 1995, East Cleveland Police Officers Todd Dietzel, Ike Jones, and Elijah Baisden, responding to a call, arrived at 1373 East 133rd Street and saw four men who had been fighting begin to disperse. After ordering them to stop, Dietzel observed Beavers disappear behind a black Dodge Caravan, remove what appeared to be a revolver from the waistband of his pants, and then push it behind the rear passenger-tire of the van. Dietzel ordered Beavers down on the ground, handcuffed him, and retrieved a loaded .32 caliber H & R Inc. revolver from underneath the van. Officer Jones then arrested Beavers for carrying a concealed weapon. The morning after his arrest, Beavers told Detective Matt Balli, who had been assigned to follow up investigation on this case, that he walked behind the van to urinate when the police arrested him. On October 2, 1995, a grand jury indicted Beavers for carrying a concealed weapon and having a weapon while under a - 4 - disability and on November 9, 1995, a petit jury returned guilty verdicts on both counts in the case. Beavers now appeals his convictions and assigns two errors for our review which share a common basis in law and which we shall discuss together: I. THE TRIAL COURT VIOLATED EVIDENCE RULE 609(B) BY ALLOWING THE STATE TO QUESTION ITS WITNESS ABOUT THE APPELLANT'S ELEVEN-YEAR-OLD CONVICTION FOR SEXUAL BATTERY WITHOUT MAKING SPECIFIC FINDINGS THAT THE PROBATIVE VALUE OF SAID CONVICTION SUBSTANTIALLY OUTWEIGHED ITS PREJUDICIAL EFFECT. II. THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY ALLOWING THE STATE TO QUESTION ITS WITNESS ABOUT THE APPELLANT'S PROBATION VIOLATIONS. Beavers contends the trial court violated Evidence Rule 609 and abused its discretion when it permitted state's witnesses to testify about his eleven-year-old sexual battery conviction and his probation violations. The state maintains the court did not abuse its discretion in admitting evidence of appellant's prior convictions and urges that the trial court's failure to quote Evidence Rule 609 verbatim does not invalidate an otherwise proper ruling. Significantly, in this case, appellant did not testify at trial. Rather, the appellant put his character into issue when defense counsel introduced, via cross-examination of Detective Balli, Beavers' statement that he went behind the van to urinate. In response to this testimony, and in order to impeach Beavers' - 5 - credibility in making that statement, the state introduced evidence of the appellant's prior convictions including that for sexual battery and probation violations arising out of prior drug convictions during its re-direct examination of the Detective. The appellant's out-of-court statement made to Detective Balli that he went behind the van to urinate was offered by the appellant to prove the truth of the matter asserted and therefore, constitutes hearsay. See Evidence Rule 801. Further, Evidence Rule 806 permits impeachment of a declarant's out-of- court statement and states, in relevant part: When a hearsay statement, *** has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness.*** The question then becomes, if the appellant had testified, would the state have been permitted to impeach credibility by evidence of criminal convictions or probation violations. We will analyze the admissibility of the sexual battery conviction pursuant to Evidence Rule 609(B) and then proceed to the admissibility of the probation violations pursuant to Evidence Rule 609(A)(2). Evidence Rule 609(B) states, in part: Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement, or the termination of probation *** unless the court determines, in the interests of justice, that the probative value of the conviction supported by - 6 - specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence. Thus, before a conviction that is more than ten-years-old can be used for impeachment, Evidence Rule 609(B) requires a party to provide advance written notice of intent to use such conviction, and the trial court to determine that the probative value of such conviction substantially outweighs its prejudicial effect. Appellant's principal concern here is the failure of the trial court to make the appropriate 609(B) determination. The record reflects that prior to voir dire, defense counsel moved to exclude Beavers' eleven-year-old sexual battery conviction. The following morning, out of the presence of the jury, the court announced its ruling on the motion: ***Based on the facts in this case and the defendant's history, which this did not appear to be an isolated event in the individual's life, we're going to allow cross-examination. I don't think the one year difference here is enough. This isn't like a 25 year old crime. This isn't a situation where somebody had a single conviction in, say, 1970, or something, and 25 good years and then fall back into crime again. This is the same individual, this is the same line, so to speak. Because the court failed to specifically determine that the probative value of the eleven-year-old conviction outweighed its prejudicial effect, the trial court erred in permitting the - 7 - state's questioning concerning Beavers' sexual battery conviction. However, there is ample independent evidence in this case from which the jury could have reasonably found Beavers guilty beyond a reasonable doubt. Officer Dietzel observed Beavers move away from the group and behind the van despite a police order to stop. He then observed Beavers remove what appeared to be a revolver from the waistband of his pants and place it beneath the van. The officer testified he retrieved the weapon from its location near the rear tire. The state introduced the weapon, a .32 caliber H & R Inc. revolver, into evidence at trial, and through cross-examination of Detective Balli, the jury had an opportunity to consider the appellant's claim that he had gone to the location behind the van to urinate. In this case, we conclude based upon these facts that despite the court's failure to make the required Evidence Rule 609(B) determination, the admission of this conviction constituted harmless error pursuant to Criminal Rule 52(A). Regarding the admissibility of the probation violations, Evidence Rule 609(A)(2) states, in part: *** evidence that the accused has been convicted of a crime is admissible if the crime was punishable by death or imprisonment in excess of one year pursuant to the law under which the accused was convicted and if the court determines that the probative value of the evidence outweighs the danger of unfair prejudice of confusion of the issues, or of misleading the jury. - 8 - The Ohio Supreme Court has determined that a trial court "possess broad discretion under Evid. R. 609." State v. Wright (1990), 48 Ohio St. 5, 7; See also State v. Amburgey (1987), 33 Ohio St.3d 115. Therefore, a trial court's ruling pursuant to Evidence Rule 609 will constitute an abuse of discretion only when the "court's attitude is unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157. In this case, Beavers violated his probation for two drug abuse convictions for possession of cocaine when he pleaded guilty to a third such charge. All three convictions constituted violations of R.C. 2925.11 which provides sentencing in excess of one year for each conviction. Therefore, evidence of the three convictions, the third constituting probation violations for the prior two, is admissible under Evidence Rule 609(A)(2), if the probative value of the evidence outweighs its prejudicial effect. The state inquired as to the probation violations in response to Detective Balli's testimony that Beavers indicated to him that he was arrested while urinating. We conclude that the trial court did not abuse it discretion by allowing such questioning pursuant to Evidence Rule 609(A)(2) and thus, Beavers' probation violations were admissible via Evidence Rule 608. In accordance with the foregoing analysis, the judgment of the trial court is affirmed. - 9 - Judgment affirmed. - 10 - 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 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. SWEENEY, P.J., and DYKE, J., CONCUR JUDGE TERRENCE O'DONNELL 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 .