[Cite as State v. Burns, 2012-Ohio-3100.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011CA0070
vs. : T.C. CASE NO. 11CR0117
WILLIAM R. BURNS, JR. : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
.........
OPINION
Rendered on the 6th day of July, 2012.
Stephen K. Haller, Pros, Attorney; Elizabeth A. Ellis, Asst. Pros. Attorney, Atty. Reg. No. 0074332, 61 Greene Street, Xenia, OH 45385 Attorneys for Plaintiff-Appellee
Ralph C. Buss, Atty. Reg. No. 0011571; Jerri Mitchell-Tharp, Atty. Reg. No. 0079565, 168 E. High Street, Painesville, OH 44077 Attorneys for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant William Burns appeals from his conviction and sentence for
falsification to obtain a concealed handgun license, R.C. 2921.13(A)(14), a felony of the
fourth degree.
{¶ 2} In February 2011, Defendant presented an application for a concealed handgun 2
license to the Greene County Sheriff’s Department. Question number 9 on the application
asked, “Have you ever been convicted of, or pleaded guilty to, a misdemeanor offense of
violence, charge of domestic violence, or a similar offense in this or any other state?”
Defendant responded, “No.”
{¶ 3} Upon receipt of the application, Julie Devoe performed a background check on
Defendant. Although Defendant’s BCI record did not reflect a prior conviction, other records
indicated that Defendant had pled guilty to domestic violence in Montgomery County in 1995.
Devoe requested and received several documents from the Montgomery County Clerk of
Courts regarding that conviction. The documents bore the same name, date of birth, and
social security number that Defendant had written on his application for the concealed
handgun license. Devoe sent a denial letter to Defendant and then forwarded the application
and court records to the detective section.
{¶ 4} The case was assigned to Detective Metz for investigation. When Detective
Metz spoke with Defendant, Defendant stated that he did not believe that he had a conviction,
and would provide paperwork to that effect. Detective Metz never received any documents
or other information from Defendant.
{¶ 5} Defendant was indicted on one count of falsification to obtain a concealed
handgun license, R.C. 2921.12(A)(14). The case proceeded to a jury trial. At the conclusion
of the trial, Defendant made a motion for acquittal pursuant to Crim.R. 29. The trial court
overruled the motion. The jury found Defendant guilty of the charge and the trial court
sentenced him to community control.
{¶ 6} Defendant appeals, raising the following assignment of error: 3
“THE TRIAL COURT ERRED IN PARTIALLY DENYING APPELLANT’S CRIM.R. 29
MOTION FOR ACQUITTAL BECAUSE APPELLEE FAILED TO PRODUCE ANY
EVIDENCE THAT APPELLANT HAD PREVIOUSLY ENTERED A GUILTY PLEA TO
THE CHARGE OF DOMESTIC VIOLENCE.”
{¶ 7} In State v. Haggerty, 2d Dist. Montgomery No. 24405, 2011-Ohio-6705, ¶
19-21, we wrote:
When considering a Crim.R. 29 motion for acquittal, the trial court
must construe the evidence in a light most favorable to the State and
determine whether reasonable minds could reach different
conclusions on whether the evidence proves each element of the
offense charged beyond a reasonable doubt. State v. Bridgeman
(1978), 55 Ohio St.2d 261. The motion will be granted only when
reasonable minds could only conclude that the evidence fails to
prove all of the elements of the offense. State v. Miles (1996), 114
Ohio App.3d 738.
A Crim.R. 29 motion challenges the legal sufficiency of the
evidence. A sufficiency of the evidence argument challenges
whether the State has presented adequate evidence on each element
of the offense to allow the case to go to the jury or sustain the
verdict as a matter of law. State v. Thompkins (1997), 78 Ohio
St.3d 380. The proper test to apply to such an inquiry is the one set
forth in paragraph two of the syllabus of State v. Jenks (1991), 61 4
Ohio St.3d 259:
“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.”
{¶ 8} Defendant contends that his conviction is not supported by sufficient evidence
because the State failed to produce a certified judgment entry as proof of his prior conviction.
The State acknowledges that it offered no certified judgment entry, but insists that it was not
required to have done so.
{¶ 9} The State called as a witness Assistant Chief Deputy Clerk, Pamela Dyer, of
the office of Montgomery County Clerk of Courts. Dyer explained that, in 1995, the
municipal court judge1 wrote his judgment directly on the case file, and no separate signed
judgments were generated. Through this witness, the State offered, and the trial court
admitted into evidence, certified copies of two pages of the clerk of court’s docket, which tend
to prove the existence of Defendant’s 1995 conviction for domestic violence.
{¶ 10} The issue now before us is whether the certified docket pages were sufficient
1 The Montgomery County Clerk of Courts maintains the docket for the County Court, now the Montgomery County Municipal Court. 5
proof of a prior conviction from which the jurors could find that Defendant had lied on his
application for a concealed handgun license. For the following reasons, we answer that
question in the affirmative.
{¶ 11} Defendant was convicted of falsification to obtain a concealed handgun
license in violation of R.C. 2921.12(A)(14), which states in relevant part: “No person shall
knowingly make a false statement * * * when * * * the statement is made in an application
filed with a county sheriff * * * in order to obtain or renew a license to carry a concealed
handgun * * *.” The false statement of which Defendant was accused of making on his
application was that he had never “been convicted of, or pleaded guilty to, a misdemeanor
offense of violence, charge of domestic violence, or a similar offense, in this or any other
state.”
{¶ 12} Clearly, Defendant’s prior conviction is not an element of the offense with
which he was charged. However, under the facts of this case, the existence of a prior
conviction is relevant to the issue of fact of whether Defendant made a false statement.
{¶ 13} Defendant has not cited, nor have we found, any statute, rule, or case law that
supports Defendant’s contention that in order to prove that he made a false statement in
violation of R.C. 2921.13(A)(14), the State was required to provide a certified copy of the
judgment of his prior conviction. On the other hand, we have found an abundance of
guidance from different situations in which a defendant’s prior conviction is an element
required to be proven beyond a reasonable doubt by the State.
{¶ 14} R.C. 2945.75(B)(1) states: “Whenever in any case it is necessary to prove a
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[Cite as State v. Burns, 2012-Ohio-3100.]
IN THE COURT OF APPEALS OF GREENE COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2011CA0070
vs. : T.C. CASE NO. 11CR0117
WILLIAM R. BURNS, JR. : (Criminal Appeal from Common Pleas Court) Defendant-Appellant :
.........
OPINION
Rendered on the 6th day of July, 2012.
Stephen K. Haller, Pros, Attorney; Elizabeth A. Ellis, Asst. Pros. Attorney, Atty. Reg. No. 0074332, 61 Greene Street, Xenia, OH 45385 Attorneys for Plaintiff-Appellee
Ralph C. Buss, Atty. Reg. No. 0011571; Jerri Mitchell-Tharp, Atty. Reg. No. 0079565, 168 E. High Street, Painesville, OH 44077 Attorneys for Defendant-Appellant
GRADY, P.J.:
{¶ 1} Defendant William Burns appeals from his conviction and sentence for
falsification to obtain a concealed handgun license, R.C. 2921.13(A)(14), a felony of the
fourth degree.
{¶ 2} In February 2011, Defendant presented an application for a concealed handgun 2
license to the Greene County Sheriff’s Department. Question number 9 on the application
asked, “Have you ever been convicted of, or pleaded guilty to, a misdemeanor offense of
violence, charge of domestic violence, or a similar offense in this or any other state?”
Defendant responded, “No.”
{¶ 3} Upon receipt of the application, Julie Devoe performed a background check on
Defendant. Although Defendant’s BCI record did not reflect a prior conviction, other records
indicated that Defendant had pled guilty to domestic violence in Montgomery County in 1995.
Devoe requested and received several documents from the Montgomery County Clerk of
Courts regarding that conviction. The documents bore the same name, date of birth, and
social security number that Defendant had written on his application for the concealed
handgun license. Devoe sent a denial letter to Defendant and then forwarded the application
and court records to the detective section.
{¶ 4} The case was assigned to Detective Metz for investigation. When Detective
Metz spoke with Defendant, Defendant stated that he did not believe that he had a conviction,
and would provide paperwork to that effect. Detective Metz never received any documents
or other information from Defendant.
{¶ 5} Defendant was indicted on one count of falsification to obtain a concealed
handgun license, R.C. 2921.12(A)(14). The case proceeded to a jury trial. At the conclusion
of the trial, Defendant made a motion for acquittal pursuant to Crim.R. 29. The trial court
overruled the motion. The jury found Defendant guilty of the charge and the trial court
sentenced him to community control.
{¶ 6} Defendant appeals, raising the following assignment of error: 3
“THE TRIAL COURT ERRED IN PARTIALLY DENYING APPELLANT’S CRIM.R. 29
MOTION FOR ACQUITTAL BECAUSE APPELLEE FAILED TO PRODUCE ANY
EVIDENCE THAT APPELLANT HAD PREVIOUSLY ENTERED A GUILTY PLEA TO
THE CHARGE OF DOMESTIC VIOLENCE.”
{¶ 7} In State v. Haggerty, 2d Dist. Montgomery No. 24405, 2011-Ohio-6705, ¶
19-21, we wrote:
When considering a Crim.R. 29 motion for acquittal, the trial court
must construe the evidence in a light most favorable to the State and
determine whether reasonable minds could reach different
conclusions on whether the evidence proves each element of the
offense charged beyond a reasonable doubt. State v. Bridgeman
(1978), 55 Ohio St.2d 261. The motion will be granted only when
reasonable minds could only conclude that the evidence fails to
prove all of the elements of the offense. State v. Miles (1996), 114
Ohio App.3d 738.
A Crim.R. 29 motion challenges the legal sufficiency of the
evidence. A sufficiency of the evidence argument challenges
whether the State has presented adequate evidence on each element
of the offense to allow the case to go to the jury or sustain the
verdict as a matter of law. State v. Thompkins (1997), 78 Ohio
St.3d 380. The proper test to apply to such an inquiry is the one set
forth in paragraph two of the syllabus of State v. Jenks (1991), 61 4
Ohio St.3d 259:
“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.”
{¶ 8} Defendant contends that his conviction is not supported by sufficient evidence
because the State failed to produce a certified judgment entry as proof of his prior conviction.
The State acknowledges that it offered no certified judgment entry, but insists that it was not
required to have done so.
{¶ 9} The State called as a witness Assistant Chief Deputy Clerk, Pamela Dyer, of
the office of Montgomery County Clerk of Courts. Dyer explained that, in 1995, the
municipal court judge1 wrote his judgment directly on the case file, and no separate signed
judgments were generated. Through this witness, the State offered, and the trial court
admitted into evidence, certified copies of two pages of the clerk of court’s docket, which tend
to prove the existence of Defendant’s 1995 conviction for domestic violence.
{¶ 10} The issue now before us is whether the certified docket pages were sufficient
1 The Montgomery County Clerk of Courts maintains the docket for the County Court, now the Montgomery County Municipal Court. 5
proof of a prior conviction from which the jurors could find that Defendant had lied on his
application for a concealed handgun license. For the following reasons, we answer that
question in the affirmative.
{¶ 11} Defendant was convicted of falsification to obtain a concealed handgun
license in violation of R.C. 2921.12(A)(14), which states in relevant part: “No person shall
knowingly make a false statement * * * when * * * the statement is made in an application
filed with a county sheriff * * * in order to obtain or renew a license to carry a concealed
handgun * * *.” The false statement of which Defendant was accused of making on his
application was that he had never “been convicted of, or pleaded guilty to, a misdemeanor
offense of violence, charge of domestic violence, or a similar offense, in this or any other
state.”
{¶ 12} Clearly, Defendant’s prior conviction is not an element of the offense with
which he was charged. However, under the facts of this case, the existence of a prior
conviction is relevant to the issue of fact of whether Defendant made a false statement.
{¶ 13} Defendant has not cited, nor have we found, any statute, rule, or case law that
supports Defendant’s contention that in order to prove that he made a false statement in
violation of R.C. 2921.13(A)(14), the State was required to provide a certified copy of the
judgment of his prior conviction. On the other hand, we have found an abundance of
guidance from different situations in which a defendant’s prior conviction is an element
required to be proven beyond a reasonable doubt by the State.
{¶ 14} R.C. 2945.75(B)(1) states: “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 6
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.” Ohio courts have held that R.C.
2945.75(B)(1) provides one, non-exclusive method of establishing a prior conviction. State
v. Lewis, 4th Dist. Lawrence No. 10CA24, 2011-Ohio-911, ¶ 17, citations omitted. Accord
State v. Volpe, 10th Dist. Franklin No. 06AP-1153, 2008-Ohio-1678, ¶ 51. Other means of
proving prior convictions remain available to the State.
{¶ 15} For example, the existence of a prior conviction may be introduced through the
testimony of one who has knowledge of the prior conviction and can identify the offender as
involved in both cases, such as a probation officer. State v. Hill, 6th Dist. Fulton Nos.
F-06-013, F-06,-014, 2007-Ohio-2832, ¶ 10, citing State v. Jarvis, 11th Dist. Portage No.
98-P-0081, 1999 WL 1313645 (Dec. 23, 1999).
{¶ 16} More relevant to this case, a prior conviction also may be established with
certified copies of the trial court docket. Id., citing State v. Chaney, 128 Ohio App.3d 100,
105, 713 N.E.2d 1118 (12th Dist.1998). Accord, Volpe, at ¶ 53 (certified data compilations
of trial court dockets sufficient to prove defendant’s prior convictions). If certified trial court
docket pages are sufficient to prove a prior conviction in a case where the existence of the
conviction is an element to be proven beyond a reasonable doubt, we see no reason why the
same evidence should not be sufficient when the State must prove the Defendant lied about
not having a prior conviction.
{¶ 17} Finally, Defendant argues that the State failed to prove that his conviction was
constitutionally valid. However, R.C. 2945.75(B)(3) states that “[i]f the defendant claims a
constitutional defect in any prior conviction, the defendant has the burden of proving the 7
defect by a preponderance of the evidence.” Defendant has failed to do so.
{¶ 18} Defendant’s assignment of error is overruled. The judgment of the trial court
will be affirmed.
FAIN, J., And CUNNINGHAM, J., concur.
(Hon. Penelope R. Cunningham, First District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Elizabeth A. Ellis, Esq. Ralph C. Buss, Esq. Jerri Mitchell-Tharp, Esq. Hon. Stephen Wolaver