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State v. Hamilton4/12/2002
that the document at issue here was the copy that he was provided in discovery. Defense counsel accounted for the failure to provide an original and, thus, the document was admissible.
The court abused its discretion by excluding the statement given by Ms. Lawrence. Appellant's fifth assignment of error is sustained.
The third assignment of error raised by appellant is:
"The trial court abused its discretion by admitting improper character evidence to the prejudice of the appellant."
Appellant asserts that the trial court improperly allowed evidence of his character. Specifically, the court allowed evidence of the appellant's drug use and evidence that appellant had previously handled a gun.
Evid.R. 403(A), which pertains to relevant evidence, applies to this case, and states, " 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." The Ohio Rules of Evidence differ from the Federal Rules in that Ohio Rule 403 is separated into subparts (A) and (B). Subpart (B), which pertains to undue delay or cumulative evidence, is discretionary and includes the same discretionary language that is in the federal rule "evidence may be excluded." Subpart (A), however, is titled "exclusion mandatory," and states that "evidence is not admissible."
Paul Lyons, a friend of the deceased, testified that appellant handled one of the victim's guns a few months before the victim was shot. The gun he saw appellant handling was the victim's nine-millimeter. The victim was killed with his .38 caliber revolver. The defense asserts that the testimony that the victim has handled one of the victim's guns has no probative value, because it was not the gun used to kill the victim. We disagree. The fact that appellant had access to at least one of the victim's guns tends to show that appellant was more likely to have access to the gun used in this crime. This has probative value for two reasons. First, it could mean that appellant had access to the gun on the night in question and committed this offense. Second, it could also show that defendant had access to this gun on a prior occasion, and that is the reason his fingerprint was on the gun.
There was also some prejudice involved with the testimony, as it showed appellant handling one of the victim's guns. The testimony of Mr. Lyons indicated that the circumstances involved in handling the gun make it less prejudicial. Mr. Lyons testified that the victim knew that appellant had the nine-millimeter, and had asked for it back. Mr. Lyons testimony does not indicate how long appellant had the gun in his possession, only that appellant retrieved the gun from an upstairs bedroom. Mr. Lyons testified that, to his knowledge, the nine-millimeter had not left the house. Also, later in the trial, Sgt. Lutha testified that appellant, in his statement, admitted touching the nine-millimeter on a prior occasion.
The weighing of the probative value and the prejudice associated with the testimony is very close, perhaps equal. We do not consider that the probative value was "substantially outweighed" by the danger of prejudice, as required by Evid.R. 403(A). Therefore, the court did not err in allowing this testimony of Mr. Lyons.
In regards to drug use, two acquaintances of appellant testified for the state. Both of these individuals received reduced sentences in exchange for their testimony. One of the individuals, Jonathon King, testified on direct examination:
"Q: How long have you known [appellant]?
"A: Two and a half, three years.
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