State v. Avery

Opinion

[Cite as State v. Avery, 2026-Ohio-2848.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : C.A. No. 2025-CA-50 Appellee : : Trial Court Case No. 24-CR-729(A) v. : : (Criminal Appeal from Common Pleas EDWIN ARTHUR AVERY : Court) : Appellant : FINAL JUDGMENT ENTRY & : OPINION

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Pursuant to the opinion of this court rendered on July 24, 2026, the judgment of the

trial court is affirmed.

Costs to be paid as stated in App.R. 24.

Pursuant to Ohio App.R. 30(A), the clerk of the court of appeals shall immediately

send a copy of the court’s ruling to each party and note that action on the docket.

Additionally, pursuant to App.R. 27, the clerk of the court of appeals shall send a certified

copy of this judgment, which constitutes a mandate, to the clerk of the trial court and note

the service on the appellate docket.

For the court,

ROBERT G. HANSEMAN, JUDGE

LEWIS, P.J., and HUFFMAN, J., concur. OPINION CLARK C.A. No. 2025-CA-50

THOMAS W. KIDD, JR., Attorney for Appellant JOHN M. LINTZ, Attorney for Appellee

HANSEMAN, J.

{¶ 1} Defendant-appellant Edwin Arthur Avery appeals from his convictions in the

Clark County Common Pleas Court, following a jury trial, of having a weapon while under

disability, carrying a concealed weapon, and improper handling of a firearm in a motor

vehicle. Avery argues that his convictions should be reversed, because the trial court abused

its discretion in admitting multiple prior convictions to prove his firearm disability when he

was willing to stipulate to the prior convictions as an element of his charges of having a

weapon while under disability. Avery also argues that defense counsel was ineffective for

failing to stipulate to his prior convictions. For the reasons which follow, the judgment is

affirmed.

I. Facts and Course of Proceedings

{¶ 2} On October 1, 2024, Avery was indicted for one count of attempted murder, one

count of felonious assault, two counts of having weapons while under disability, one count

of carrying a concealed weapon, and one count of improper handling of a firearm in a motor

vehicle. Only the weapons’ related convictions are of relevance to this appeal. Prior to trial,

the State dismissed the attempted murder charge, and after trial, the jury returned a verdict

of not guilty on the felonious assault charge. The jury found Avery guilty on the two counts

of having a weapon while under disability, the count of carrying a concealed weapon, and

the count of improper handling of a firearm in a motor vehicle.

2 {¶ 3} The charges stemmed from events that unfolded on August 3, 2024. Witness

testimony at trial showed that, during the evening of August 3, 2024, Avery was driving a

gray Chrysler with two passengers, his girlfriend and a man. Avery drove past his

acquaintance M.W., who was standing outside of a residence located on South York Street

in Springfield, Ohio. Avery stopped the vehicle, and he and his passengers exited the car.

Avery’s male companion was openly holding a firearm. One witness described Avery as

placing a firearm in his pocket when he exited the vehicle.

{¶ 4} According to M.W., Avery approached him and asked him about “some dope

that came up missing.” M.W. said that he did not know anything, and Avery punched him,

knocking him down. M.W. stood back up and was shot in his chest and arm. M.W. testified

that Avery was not the person who shot him and that he had not seen Avery with a gun.

{¶ 5} After Avery punched M.W., Avery was also shot, and the bullet hit his head near

the right temple, causing him to fall to the ground. When M.W. and Avery were struck by

gunfire, numerous other shots were fired by multiple people who were at the location. Upon

officers’ arrival on scene, Avery was on the ground, conscious and bleeding. Officer Emily

Turner provided medical aid to Avery. While she was assisting Avery, a pink nine-millimeter

handgun was observed in Avery’s pocket and collected as evidence. The handgun was

registered to Avery’s girlfriend and later determined to be loaded.

{¶ 6} Prior to trial, Avery had not stipulated to his prior convictions. The State called

City of Springfield Police Department Detective Kevin Miller to testify regarding Avery’s prior

convictions. Avery has two prior convictions for trafficking in crack from 1999 and 2001.

These convictions formed the basis of the firearm disability in count three of the indictment,

which alleged Avery’s charge of having weapons while under disability under

3 R.C. 2923.13(A)(3). Avery did not object during Det. Miller’s testimony regarding the two

prior drug trafficking convictions.

{¶ 7} Det. Miller also testified to the basis of the firearm disability in count four of the

indictment, which alleged Avery’s charge of having weapons while under disability under

R.C. 2923.13(A)(2). Avery has a prior conviction for robbery and a conviction for felonious

assault, both from 2005. Avery did not object when Det. Miller testified about the felonious

assault conviction; however, Avery did object before Det. Miller testified about the robbery

conviction. Citing Evid. R. 403(A) and (B), Avery argued that the testimony was cumulative

and unnecessary. A sidebar conference was held, and the trial court overruled Avery’s

objection.

{¶ 8} During the sidebar conference, Avery offered to stipulate to the prior conviction.

But because Avery had not stipulated to the priors before the jury heard testimony regarding

them, the trial court did not allow the stipulation. Instead, the court allowed the robbery

conviction to be testified about generally in the State’s case. Avery’s counsel asked for a

limiting jury instruction. The trial court granted the request and provided the instruction to

the jury immediately after Det. Miller’s testimony regarding Avery’s prior convictions. The

court instructed the jury that the evidence of Avery’s prior convictions was received because

a prior conviction is an element of the offenses charged. The court further instructed that the

evidence was not received, nor may be it considered, to prove the defendant’s character in

order to show that he acted in conformity with that character. The trial court also gave the

limiting instruction in its jury instructions.

{¶ 9} At the end of the State’s case, the four judgment entries of convictions were

redacted and marked as State’s Exhibits 72-A, 73-A, 74-A, and 75-A and the jury was not

4 provided the entirety of the judgment entries 72 through 75, which included Avery’s sentence

for each conviction. Avery did not object to the redacted exhibits.

{¶ 10} The jury returned a verdict of not guilty on the felonious assault count and

guilty verdicts on the two counts of having a weapon while under disability, the count of

carrying a concealed weapon, and the count of improper handling of a firearm in a motor

vehicle.

{¶ 11} At Avery’s sentencing hearing, the trial court merged the two counts of having

a weapon while under disability, with the State electing to proceed on count three for

purposes of sentencing. On that count, the court imposed a 36-month prison term to run

consecutive to Avery’s sentences for carrying a concealed weapon and improper handling

of a firearm in a motor vehicle. In total, Avery was ordered to serve a total of 54 months in

prison.

{¶ 12} This appeal followed. Avery raises two assignments of error relating to

evidence of his prior convictions being admitted during his trial. He claims (1) the trial court

abused its discretion by admitting multiple prior convictions to prove the disability element

of the two counts of having weapons under disability despite his willingness to stipulate to

the prior convictions, and (2) if the trial court did not abuse its discretion, then trial counsel

rendered ineffective assistance when he failed to stipulate to the prior convictions.

II. Trial Court’s Admission of Prior Convictions

{¶ 13} In his first assignment of error, Avery claims that the trial court abused its

discretion by admitting multiple judgment entries of his prior convictions to prove the

disability element of the two counts of R.C. 2923.13 despite the availability of a stipulation.

In support of his argument, Avery relies on Old Chief v. United States, 519 U.S. 172 (1997),

and State v. Creech, 2016-Ohio-8440, which hold that a trial court abuses its discretion by

5 refusing to allow a defendant to stipulate to the fact of a prior conviction when that prior

conviction constitutes an element of a weapons under disability offense. Avery argues that

the evidence of his prior convictions was unfairly prejudicial under Evid.R. 403(A).

{¶ 14} Evid.R. 403(A) provides that “[a]lthough 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.” In Creech, the Supreme Court of Ohio adopted the

reasoning of the United States Supreme Court in Old Chief v. United States, 519 U.S. 172

(1997) and determined that a trial court abuses its discretion under Evid.R. 403(A) when it

does not allow a defendant to stipulate to his prior convictions for the purposes of

establishing the status element of the offense of having weapons while under disability, and

it instead permits the state to introduce the full record of the defendant's prior

offenses. Creech at ¶ 1.

{¶ 15} In Creech, before Creech’s trial commenced, he offered to stipulate to one of

the three prior convictions that created a disability for him to acquire, have, carry, or use any

firearm or dangerous ordinance under R.C. 2923.13 (having a weapon while under

disability). Creech was on trial for three separate counts of having a weapon while under a

disability and his three disabilities were (1) being under a pending indictment for aggravated

drug trafficking in the vicinity of a school, (2) a prior conviction for felonious assault with a

dangerous weapon, and (3) a prior felony conviction for possession of crack cocaine. When

the prosecution refused to agree to Creech’s offer to stipulate, the trial court allowed the

government to use the three judgment entries of Creech’s prior convictions.

{¶ 16} The judgment entries included factual details of Creech’s prior convictions,

including the use of a firearm in relation to his felonious assault conviction. At least one of

the judgment entries contained Creech’s sentence. The prosecution specifically addressed

6 Creech’s three prior convictions in detail in its opening statement, during the trial testimony,

and in its closing argument. The judgment entries of Creech’s prior convictions were not

redacted. In Creech, the Court explained the level of detail provided to the jury as

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.

Creech, 2016-Ohio-8440, at ¶ 37.

{¶ 17} On the specific facts of that case, the Supreme Court of Ohio held that

“[p]ursuant 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 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.” Id. at

¶ 40.

{¶ 18} While Creech is instructive on the record before us in Avery’s case, it is

distinguishable for several reasons and therefore not controlling. Unlike in Creech, where an

offer to stipulate was made before the jury trial commenced, Avery did not offer a stipulation

7 before trial. The trial court did not refuse to allow Avery to stipulate to his priors, because

Avery never made the request.

{¶ 19} By the time Avery contested the proof of his prior convictions, objected, and

offered to stipulate, the State had already presented evidence that Avery had been convicted

of trafficking in crack on two separate occasions and had been convicted of felonious

assault. When Avery offered to stipulate, it was too late for the trial court to allow the

stipulation because the jury had already heard evidence of three of his four prior convictions.

{¶ 20} In addition, and unlike in Creech, although the State offered testimony that

identified Avery’s prior convictions by name, the State did not discuss details of the prior

offenses in its opening or closing statements. The State also did not elicit details of Avery’s

priors through Det. Miller’s testimony. The State limited the information reflected in the

judgment entries by redacting the factual details of Avery’s offenses and his sentences so

that the jury did not receive detailed information regarding the prior convictions. The trial

court approved the redaction of the judgment entries. The factual details of Avery’s offenses

were not disclosed to the jury like they were in Creech.

{¶ 21} Because the evidence presented to the jury was limited to proof of the

convictions themselves, they were not offered as other crimes or acts evidence prohibited

under Evid.R. 404(B). Under these circumstances, the jury was unlikely to ascribe unfair

prejudice. In our opinion, there is little conceivable difference in terms of the potential impact

on the jury between the information that would have been contained in a stipulation of the

prior convictions (had there been one) versus the evidence presented. Therefore,

Evid.R. 403 and 404(B) did not require exclusion of the evidence of Avery’s prior convictions,

and the trial court did not abuse its discretion in admitting the evidence. We also note that

the existence of a prior conviction, when it is an element of an offense, which the State is

8 required to prove in its case, does not constitute unduly prejudicial “other acts” evidence

under Evid.R. 403 or 404(B). State v. Wood, 2018-Ohio-875, ¶ 38 (2d Dist.), citing State v.

Leigh, 2017-Ohio-7105, ¶ 14 (6th Dist.); State v. Rodriguez, 2014-Ohio-911, ¶ 4 (9th Dist.);

State v. Herron, 2013-Ohio-3139, ¶ 21 (8th Dist.), citing State v. Henderson, 58 Ohio St.2d

171, 173 (1979).

{¶ 22} Because Creech is distinguishable and is not controlling, we do not need to

analyze whether Avery’s other convictions were harmless error, as suggested by Avery, or

invited error, as suggested by the State. However, even if we could find error in the

admission of Avery’s prior offenses (which we do not), we cannot conclude on the record

before us that Avery was unfairly prejudiced. The jury concluded that Avery was not guilty

of felonious assault, knowing that Avery had prior convictions of felonious assault, robbery,

and drug trafficking.

{¶ 23} Additionally, the four weapons offenses were all established by the same

simple facts at trial. Three law enforcement officers testified to observing the pink nine-

millimeter firearm in Avery’s pocket while assisting him with his head wound. The Springfield

Crime Lab determined the firearm was loaded. An officer testified that the firearm was

registered to Avery’s girlfriend, who was with Avery on August 3, 2024. One witness testified

she saw Avery place a firearm in his pocket upon exiting the vehicle and before punching

M.W. Due to the evidence demonstrating that Avery knowingly possessed a firearm, was

carrying a firearm in his pocket, and drove a vehicle with a loaded firearm, all on the evening

of August 3, 2024, we cannot conclude that the jury determined Avery’s guilt for having a

weapon while under disability, carrying a concealed weapon, or improper handling of a

firearm in a motor vehicle due to the knowledge that Avery had been convicted of drug

trafficking, robbery, and felonious assault. Therefore, even if the trial court had erred in the

9 admission of Avery’s prior convictions (which we do not hold), the outcome of Avery’s trial

would have been the same. Therefore, Avery was not unfairly prejudiced by the admission

of his prior convictions, and his first assignment of error is overruled.

III. Ineffective Assistance of Counsel

{¶ 24} In his second assignment of error, Avery claims that his trial counsel was

ineffective for failing to stipulate to the prior convictions constituting the disability element of

his charges for having weapons under while disability.

{¶ 25} It is unquestionable that the Sixth and Fourteenth Amendments to the United

States Constitution guarantee all criminal defendants not only the right to counsel, but to the

effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 685-686 (1984),

citing McMann v. Richardson, 397 U.S. 759 (1970), and Gideon v. Wainwright, 372 U.S. 335

(1963).

{¶ 26} To prove an ineffective assistance of trial counsel claim on appeal, a defendant

must show that counsel’s performance fell below an objective standard of reasonable

representation and that prejudice resulted from counsel’s deficient performance. State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus; Strickland at 687; Thornell

v. Jones, 602 U.S. 154 (2024). Judicial scrutiny of counsel’s performance is highly

deferential. Strickland at 689. In all cases, counsel is presumed to have rendered effective

assistance, and courts “indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id.

{¶ 27} To show prejudice, a defendant must prove that there exists a reasonable

probability that were it not for counsel’s errors, the result would have been different. Bradley

at paragraph three of the syllabus; Strickland at 687. “‘A reasonable probability is a

probability sufficient to undermine confidence in the outcome. That requires a substantial,

10 not just conceivable, likelihood of a different result.’” Thornell at 163, quoting Cullen v.

Pinholster, 563 U.S. 170, 189 (2011). The failure to make a showing of either deficient

performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at

687.

{¶ 28} While it is a regular practice of defense attorneys to stipulate to prior

convictions when they are an element of the offense that must be proven by the prosecution,

courts have held that a failure to stipulate is a matter of trial strategy that does not constitute

deficient performance. State v. Wears, 2023-Ohio-4363 (3d Dist.); State v. Woods, 2018-

Ohio-875 (2d Dist.) (counsel was not ineffective by failing to stipulate to prior convictions).

Although the record does not seem to support a conclusion that Avery’s counsel failed to

stipulate as a matter of trial strategy, we do not need to determine whether counsel’s failure

constitutes deficient performance.

{¶ 29} Even if deficient performance could be found, Avery’s claim of ineffective

assistance of counsel fails because the record does not demonstrate prejudice. The jury

would have still learned that Avery had at least one prior conviction for a felony offense of

violence and at least one prior conviction for trafficking in illegal drugs because the priors

were essential elements of the State’s case. In State v. Spaulding, 2016-Ohio-8126, the

Supreme Court of Ohio addressed a defendant’s claim of ineffective assistance of counsel

based on the failure to stipulate to prior convictions. The Court concluded that prejudice was

not established because the jury still would have learned that the defendant had at least a

prior felony drug conviction and prior domestic-violence convictions. Id. at ¶ 153.

{¶ 30} There was also ample independent evidence presented by the State at trial

showing that Avery knowingly possessed a firearm, drove a motor vehicle, and carried a

loaded firearm in his pocket on the evening of August 3, 2024, supporting his guilt of having

11 weapons while under disability, carrying a concealed weapon and improper handling of a

firearm in a motor vehicle. We cannot conclude that the results of the trial would have been

different but for counsel’s failure to stipulate to Avery’s prior convictions. Having failed to

prove the prejudice prong of the ineffective assistance of counsel claim, Avery’s second

assignment of error is overruled.

IV. Conclusion

{¶ 31} Having overruled both assignments of error, the judgment of the trial court is

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LEWIS, P.J., and HUFFMAN, J., concur.