applying the criminal plain- error standard
How later courts described this case
- applying the criminal plain- error standard
Written by the judges who cited it.
The opinion
*379
Walsh, Presiding Judge,
concurring in part and dissenting in part.
I concur with the majority’s rulings on the second and third assignments of error although the assignments of error should refer to robbery and not burglary. However, on the first and fourth assignments of error, I must respectfully dissent.
First, I believe the majority was wrong in affirming appellant’s three-year sentence, under R.C. 2929.71, for possessing a firearm when the record does not show that a firearm specification was a part of the complaint. In a criminal proceeding, the prosecution must include a firearm specification in the charging instrument. While we have found previously that the complaint in a delinquency proceeding need not be read as strictly as a criminal indictment, I do not interpret this to mean that a juvenile need not be formally informed of the charges against him. Even under
Burgess,
the case cited by the majority to support its position, we required that the “facts essential to the complaint” be stated therein.
Id.,
13 Ohio App.3d at 375, 13 OBR at 458, 469 N.E.2d at 969. Three years is not an inconsequential amount of time to extend a sentence. There should be no question that a “formal and sufficient accusation” has been made before such an extension may be imposed. The handwritten paper contained in the file, but unstamped as being filed, does not comport even with the language requirements under the specification statutes.
Second, with regard to the fourth assignment of error, I can only wonder what salutary reason the prosecutor had for eliciting testimony concerning the “found” handgun. The prejudicial nature of the testimony far outweighs its probative value, particularly since there was no attempt made to link the handgun to appellant or his actions.
A trial court is vested with broad discretion in the admission of evidence. See
State v. Hymore
(1967), 9 Ohio St.2d 122, 128 , 38 O.O.2d 298, 302 , 224 N.E.2d 126, 130 . In the absence of an objection, it may strike evidence on its own motion.
Oakbrook Realty Corp. v. Blout
(1988), 48 Ohio App.3d 69, 70 , 548 N.E.2d 305, 307 . In light of the tenuous connection between the handgun and appellant, the trial court erred by failing to exclude this damaging testimony
sua sponte.