holding that where a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense and need not be alleged in the indictmentSummary of this case from State v. Caldwell
Decided April 1, 1987.
Criminal law — When prior conviction affects only penalty and not degree of offense, prior conviction is not element of offense.
O.Jur 3d Criminal Law § 135, 748, 2240.
Where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact.
APPEAL from the Court of Appeals for Montgomery County.
On July 12, 1985, Sergeant Chuck Milam, of the Ohio State Highway Patrol, was on patrol in his cruiser when he observed a vehicle weaving and traveling at a high rate of speed. After following the car for a short distance, he activated his red lights, at which point the vehicle pulled into a driveway. A man, later identified as defendant-appellee Keith E. Allen, exited from the driver's side. The officer called to the appellee, and as appellee approached the cruiser, the officer observed that appellee's gait was unsteady. He further noted that appellee's eyes were bloodshot, his breath smelled strongly of alcohol, his speech was slurred, and his behavior was belligerent. On the basis of these observations, Sergeant Milam determined that appellee was under the influence of alcohol, and placed him under arrest.
Appellee was charged with operating a motor vehicle while under the influence of alcohol in violation of R.C. 4511.19(A)(1). An amended complaint alleged that appellee had two previous drunk driving convictions within the previous five years.
R.C. 4511.19(A)(1) provides:
"(A) No person shall operate any vehicle, streetcar, or trackless trolley within this state if any of the following apply:
"(1) The person is under the influence of alcohol or any drug of abuse, or the combined influence of alcohol and any drug of abuse * * *."
The case proceeded to jury trial. Defense counsel agreed to stipulate the fact that appellee had twice been convicted of the same offense, on the condition that the stipulation be read into the record and not revealed to the jury. The trial judge accepted the stipulation but determined that the two prior convictions are an essential element of the offense since they increase the maximum penalty for the third offense from six months to a year. Subsequently, over defense objection, the judge revealed to the jury that appellee had two previous convictions of the same offense. The trial resulted in a verdict of guilty, and appellee was sentenced accordingly.
Upon appeal, the court of appeals reversed and remanded for a new trial, holding that the trial court erred to appellee's prejudice in informing the jury of his prior convictions. The court reasoned that in a prosecution of a repeat offender under R.C. 4511.19, the prior convictions are not an element of the offense. The existence of such previous convictions does not elevate the offense to one of more serious degree. The prior convictions are relevant only for purposes of imposing sentence.
The cause is now before this court upon the allowance of a motion to certify the record.
Terry L. Lewis, for appellant.
Rudd, Silverberg, Zaharieff Orlins Co., L.P.A., J. Gordon Rudd and David A. Orlins, for appellee.
The sole question before this court is whether the existence of a prior conviction is an essential element of the offense where that previous conviction affects only the penalty and does not enhance the degree of the offense itself. We hold that in such a case, the prior conviction is not an element of the offense.
Appellant argues that Ohio case law holds that where the penalty for a particular crime is enhanced by virtue of a prior conviction of the same offense, the prior offense is an essential element of the subsequent offense, and must be charged in the indictment and proved by the state. In support of this argument, appellant cites State v. Gordon (1971), 28 Ohio St.2d 45, 57 O.O. 2d 180, 276 N.E.2d 243, and State v. Henderson (1979), 58 Ohio St.2d 171, 12 O.O. 3d 177, 389 N.E.2d 494.
We do not agree with this characterization of the relevant authorities. A close examination of the case law reveals that the decisions cited by appellant are not dispositive here.
In State v. Gordon, supra, this court held that "[i]n order for the `second offense' penalty of R.C. 4549.99 to be imposed for violation of R.C. 4549.04(B) (operating a motor vehicle without the owner's consent) it is necessary that the indictment charge a prior offense as an element of the crime and that such a prior offense be proved as a matter of fact." Id. at paragraph one of the syllabus. R.C. 4549.99, as it existed then, provided that a second offense under R.C. 4549.04(B) elevated that offense from a misdemeanor to a felony. Thus, the fact of a prior conviction did not simply enhance the penalty. It transformed the crime itself by increasing its degree. In such a case, the prior conviction is an essential element of the crime, and must be proved by the state.
State v. Henderson, supra, is distinguishable on the same basis. In that case, the prior conviction raised the offense from petty theft to grand theft, transforming it from a misdemeanor to a felony of the fourth degree. The Henderson court relied on Gordon to find that the prior theft conviction was an essential element of the offense of grand theft and must be demonstrated beyond a reasonable doubt. Id. at 173, 12 O.O. 3d at 178, 389 N.E.2d at 495.
By contrast, neither the statute under which appellee herein was convicted, R.C. 4511.19(A)(1), nor the relevant penalty statute, R.C. 4511.99 (A)(3), provides that the degree of the offense is increased by virtue of the prior offenses. Only the penalty is enhanced. The requirement under Gordon and Henderson of alleging and proving the prior offense is limited to those cases where the prior offense elevates the degree of the crime in question. Where, as here, the prior offense affects only the penalty, it is not an essential element of the subsequent offense, but strictly a sentencing consideration for the court. See State v. Cichy (1984), 18 Ohio App.3d 6, 18 OBR 30, 480 N.E.2d 90.
R.C. 4511.99(A)(3) provides:
"If, within five years of the offense, the offender has been convicted of or pleaded guilty to more than one violation of section 4511.19 of the Revised Code, of a municipal ordinance relating to operating a motor vehicle while under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, of a municipal ordinance relating to operating a motor vehicle with a prohibited concentration of alcohol in the blood, breath, or urine, or of section 2903.06 or 2903.07 of the Revised Code in a case in which the jury or judge found that the offender was under the influence of alcohol, a drug of abuse, or alcohol and a drug of abuse, the court shall sentence the offender to a term of imprisonment of thirty consecutive days and may sentence the offender to a longer term of imprisonment of not more than one year. In addition, the court shall impose upon the offender a fine of not less than one hundred fifty nor more than one thousand dollars.
"In addition to any other sentence that it imposes upon the offender, the court may require the offender to attend a drivers' intervention program that is certified pursuant to section 3720.06 of the Revised Code."
The existence of a prior offense is such an inflammatory fact that ordinarily it should not be revealed to the jury unless specifically permitted under statute or rule. The undeniable effect of such information is to incite the jury to convict based on past misconduct rather than restrict their attention to the offense at hand. For this reason, we do not consider the trial court's admonitions to the jury that appellee's prior convictions are immaterial to his guilt of the present charge sufficient to cure the error. Nor are we persuaded that appellee would have been convicted absent the disclosure to the jury of appellee's two prior convictions. See State v. Bayless (1976), 48 Ohio St.2d 73, 2 O.O. 3d 249, 357 N.E.2d 1035, paragraph seven of the syllabus, vacated in part on other grounds (1978), 438 U.S. 911.
Therefore, in accordance with the foregoing, we hold that where the existence of a prior conviction enhances the penalty for a subsequent offense, but does not elevate the degree thereof, the prior conviction is not an essential element of the subsequent offense, and need not be alleged in the indictment or proved as a matter of fact.
The judgment of the court of appeals is hereby affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, WRIGHT and H. BROWN, JJ., concur.