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State v. Brown11/20/1989
CHRISTLEY, Presiding Judge.
This is an appeal from the Portage County Common Pleas Court. Appellant, Robert Eugene Brown, was indicted on a charge of intimidation of a witness in violation of R.C. 2921.04 with specifications pursuant to R.C. 2941.143.
Appellant pled not guilty. On October 30, 1987, appellant moved to have the court, rather than the jury, determine the existence of the specification. The court granted this motion.
During the trial, the prosecutor, without objection from appellant's counsel, questioned appellant in regard to appellant's prior convictions. The appellant responded he had been convicted of felonious assault and receiving stolen property. After further questioning by the prosecutor, the appellant indicated that his conviction had been for assault rather than felonious assault, and he also indicated that he had been convicted of driving a motor vehicle under the influence of alcohol. Further questioning revealed that there had been a conviction for sexual imposition. When the prosecutor initially asked the appellant if he had prior convictions, the court intervened with the following instruction:
"THE COURT: Ladies and gentlemen there should be a limiting instruction. The purpose of the testimony is to show convictions of crimes for you to determine what weight you will give to the testimony of this witness, and cannot be considered to have--whether it has any bearing on the guilt or innocence of the crime charged in this particular matter. Only for you to determine the creditability of the witness."
Prior to the admission of State Exhibit No. 3 (the journal entry reflecting the trial conviction and sentencing on the sexual imposition charge), the judge again intervened with the following instruction:
"THE COURT: Ladies and gentlemen, as I told you before, the prior conviction is allowed only for the purpose of testing--for you to test the credibility of the witness and what weight should be given to the witness' testimony and for no other purpose."
In the jury instructions, the judge gave the standard instruction concerning prior criminal acts, to wit:
"There had been testimony introduced tending to prove that this defendant was convicted of other criminal acts. This testimony may be considered for the purpose of helping you to test the credibility or the weight to be given to his testimony and it cannot be considered for any other purpose."
Appellant was found guilty and was sentenced to two to ten years' imprisonment to run concurrently with appellant's sentence in a prior conviction for aggravated burglary.
Judgment was entered on November 24, 1987 and appellant timely filed a notice of appeal on December 21, 1987. The state has not filed an appellate brief.
Appellant assigned the following assignments of error:
"1. The trial court erred in allowing the prosecutor to cross-examine appellant concerning appellant's prior misdemeanor convictions.
"2. Appellant was denied effective assistance of counsel in violation fo the Sixth and Fourteenth Amendments of the U.S. Constitution."
In his first assignment of error, appellant alleges that the court erred when it permitted the state to cross-examine appellant concerning appellant's prior misdemeanor convictions. We find the assignment oddly framed and, therefore, for the sake of clarity, will divide it into two issues: one, whether the evidence was inadmissible and constituted plain error despite the limiting instructions of the trial judge and, two, whether the trial judge had a responsibility to do more than he did in
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