¶1dissenting
¶2I would overrule the second assignment of error and affirm the judgment of the Morrow County Common Pleas Court.
¶3Defense counsel acknowledged thatboth the decision to admit or reject the proffered evidence, and the timing of such decision, rests within the sound discretion of the trial court.
¶4Further, as demonstrated from the following portion of the transcript, the record fails to demonstrate any request by defense counsel for a ruling on the admissibility of such evidence (previously raised by motion in limine).
DEFENSE ATTORNEY:
"... Mr. Hall gave me notice of his intention to try and use this and I have tried to be equally prompt in notifying the Court that I intended to object to that. I think that the Record clearly denotes that. I would have contended, and I think there's cases that reflect the fact that you should have to rule on this prior to me calling Gary Chandler to the stand so that I can make a decision as to whether or not I have to call him to the stand. Obviously had you made a ruling before I called him to the stand on this issue, then I could have used that as part of my decision as to whether or not to call him to the stand."
THE COURT: "I don't remember you asking for a ruling before you called him either."
MR. CLARK:
"That's why the Motion was filed in that way. I'm sure that's not error. I'm like Mr. Howland in that respect. I think probably the cases say that whether you rule on it before I call him to the stand is wholly discretionary with you. I think you probably won't admit error that you said made you ruling beforehand. You won't admit error, you'd rule now. I'm not quarrelling with the fact that we're hearing it at this point. The cases that I read that say that you should keep it out, Your Honor, do not turn when the decision is to keep out the thing more than ten years old..." T.972-973 (Emphasis added).
¶5I would find no abuse of discretion and overrule the second assignment of error.