State v. Ford ( 2018 )

[Cite as State v. Ford, 2018-Ohio-5169.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 106394
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
NATHAN FORD
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-17-614544-A
BEFORE: McCormack, P.J., Stewart, J., and Blackmon, J.
RELEASED AND JOURNALIZED: December 20, 2018
ATTORNEY FOR APPELLANT
Rick L. Ferrara
2077 East 4th Street, 2d Floor
Cleveland, OH 44114
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Mary Weston
Melissa Riley
Daniel T. Van
Assistant Prosecuting Attorneys
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
TIM McCORMACK, P.J.:
{¶1} Defendant-appellant Nathan Ford (“Ford”) appeals his conviction for rape,
kidnapping, aggravated burglary, robbery, and gross sexual imposition. For the reasons that
follow, we affirm.
Procedural and Substantive History
{¶2} This case stems from three separate incidents, each involving a different victim,
T.H., L.G., and S.G. In a 2005 case, Ford was convicted of multiple counts of rape, kidnapping,
gross sexual imposition, felonious assault, and aggravated robbery based on seven separate
incidents that occurred between 1996 and 2004. State v. Ford, 8th Dist. Cuyahoga Nos. 88946
and 88947, 2007-Ohio-5722. All of the underlying charges in the present case were the result
of subsequent CODIS hits.1
1
“CODIS” stands for the Combined DNA Index System database, a searchable database used to collect and store
DNA profiles from convicted offenders. DNA from rape kits are entered into the system to search for a matching
{¶3} Ford was indicted in this case on March 28, 2017. As to T.H., Ford was indicted
on two counts of rape and one count of kidnapping. All three counts carried one- and three-year
firearm specifications and sexually violent predator specifications; the kidnapping count also
carried a sexual motivation specification. The events leading to these charges occurred on or
about August 30, 2001.
{¶4} As to L.G., Ford was indicted on one count of aggravated burglary, one count of
aggravated robbery, one count of robbery, two counts of gross sexual imposition (one of which
carried a sexually violent predator specification), four counts of rape (all of which carried a
sexually violent predator specification), and two counts of kidnapping (one of which carried a
sexual motivation specification and a sexually violent predator specification). The events
leading to these charges occurred on or about March 23, 2004.
{¶5} Thirdly, as to S.G., Ford was indicted on one count of aggravated burglary, two
counts of gross sexual imposition with sexually violent predator specifications, one count of rape
with a sexually violent predator specification, and one count of kidnapping with a sexual
motivation specification and a sexually violent predator specification. All counts against S.G.
also carried one- and three-year firearm specifications. The events leading to these charges
occurred on or about March 29, 2004.
{¶6} The charges against Ford regarding T.H. resulted from an assault that took place
on Cleveland’s west side on August 30, 2001. At that time, T.H. lived near West 58th Street
and Clark Avenue. On August 30, she was walking near West 52nd Street and Clark Avenue
when she was approached by a tall black man. The man began walking next to T.H., put a gun
against her side, and ordered her to walk with him and not make any noise. The man took T.H.
profile. When the DNA profiles match, it produces a “CODIS hit.”
to the side of a building on Train Avenue, where he forced her to take her clothes off and lie on
top of her jacket. He then forced her to perform fellatio and vaginally raped her. The man
took T.H.’s clothes, leaving her with her shoes and jacket, and ordered her to wait two minutes
before she left. T.H. waited and then walked to the street with her jacket wrapped around her.
T.H. accepted a ride home from an unknown man in a truck.
{¶7} T.H.’s roommate called 911. T.H. was taken to Metrohealth Hospital (“Metro”).
At the hospital, a physician treated T.H. and collected a rape kit. The rape kit was
subsequently collected by law enforcement. DNA analysis was performed on the contents of
the rape kit, and the DNA profile from the kit’s vaginal samples included DNA from T.H. and
Ford. A DNA analyst testified that the rarity of Ford’s DNA profile in the sample was one in 12
quadrillion.
{¶8} The charges against Ford regarding L.G. stemmed from a home invasion that
occurred on March 23, 2004. At the time, L.G. was an EMS sergeant for the city of Cleveland
and a student in paramedic school. She lived in the upstairs unit of a two-family home on West
56th Street with her twin daughters. On the morning of March 23, L.G.’s daughters were at
school and she was cleaning out her car and listening to recorded notes from her class in
preparation for a test later that day. At one point, L.G. went inside her apartment to get a towel
to clean the inside of her car. An unknown tall black man wearing a ski mask had followed her
into the apartment and trapped her in the bathroom. The man grabbed the front of her neck and
squeezed hard enough that she could not breathe and urinated on herself. The man then walked
L.G. through the house to make sure that no one else was home.
{¶9} The man demanded money from L.G., and she gave him about $130 dollars. He
said that this was not enough and he had to rape her. He told her that he had a knife and
threatened to come back and kill her children if she called the police. The man dragged her into
the bathroom and forced her to perform fellatio. He then dragged her into the bedroom and
spread a towel on the bed. L.G. pleaded with the man not to rape her, telling him that she had
stitches in her vaginal area from a recent procedure and she was on her period. The man
ignored this and vaginally raped her twice, first without a condom and a second time with a
condom after forcing L.G. to apply Vaseline to her vagina.
{¶10} The man then ordered L.G. to take a shower and rinse out her mouth and vaginal
area. Afterwards, he told her to count to 500 before she got out of the shower. He fled the
house with the towel, the condom, the cash, and L.G.’s cell phone.
{¶11} Once the man left her house, L.G. drove to her sister’s house in Newburgh Heights.
She testified that she was embarrassed to call 911 because she did not want to be picked up by
her coworkers and she did not want to call the police because her brother was a Cleveland police
officer at the time. L.G. told her sister what had happened, and her sister called the police, who
transported L.G. to Metro. L.G. was treated by a physician, and a rape kit was collected. At
trial, L.G.’s treating physician testified that L.G. reported the incident as described above. He
also testified that she had abrasions on her neck that were consistent with her report of being
strangled by her attacker.
{¶12} Multiple DNA experts testified at trial as to the analysis done on DNA samples
from L.G.’s rape kit. One expert testified that she was unable to detect male DNA in L.G.’s
vaginal samples using traditional STR DNA analysis. A second expert testified that she used a
different procedure, known as Y-STR analysis. This expert testified that in situations where a
sample has a significant amount of female DNA, any male DNA that may be present in the
sample is often masked or hidden in STR analysis. Y-STR analysis, however, allows the
analyst to isolate small amounts of male DNA. Using Y-STR analysis, the analyst detected a
male profile that was consistent with Ford.
{¶13} The charges against Ford regarding S.G. also stemmed from a home invasion that
was alleged to have occurred on March 29, 2004, several days after the attack against L.G. At
the time, S.G. was living on West 56th Street in Cleveland in a house with her mother, her
then-boyfriend, her three children, and a roommate. S.G. testified that on the evening of March
29, she was working on her computer when an unknown black man wearing a mask entered the
home through her unlocked back door. She testified that the man said he had a knife and
threatened her unless she did what she was told. The man then forced her into her roommate’s
bedroom and strangled her. According to S.G., he subsequently forced her to take off her
clothes and vaginally raped her. S.G. testified that the man then told her not to move for five
minutes, threatened her children, and left. S.G. waited until the man left and then went upstairs,
where her children were sleeping and her mother was watching television. She told her mother
what had happened, and her mother called 911. S.G. reported the incident to the police, and she
was treated at the hospital and a rape kit was collected. At trial, a DNA expert testified that
while she was able to exclude Ford as a contributor to most of the DNA samples that were tested,
Ford was included as a contributor on one of the samples.
{¶14} Ford entered a plea of not guilty as to all counts, and the parties proceeded to
engage in discovery. On July 14, 2017, the state filed a motion in limine to preclude any
psychological or medical testimony that is deemed irrelevant to a valid defense in the state of
Ohio. The state also requested a Daubert hearing in the event that Ford sought to introduce any
such expert testimony at trial. The state also filed a notice of intent to introduce Evid.R. 404(B)
evidence.
{¶15} On August 7, 2017, Ford filed a reply to the state’s motion in limine, arguing that
the motion was based on speculation. Ford also filed a brief in opposition to the state’s notice
of intent to introduce Evid.R. 404(B) evidence.
{¶16} On August 9, 2017, the court held a hearing on the state’s motion in limine and
notice of intent to introduce Evid.R. 404(B) evidence. After hearing arguments from the state
and defense counsel as to these motions, Ford made an oral motion to disqualify his counsel.
Ultimately, the court granted the motion in limine, precluding Ford from introducing
psychological or medical testimony and rendering the state’s request for a Daubert hearing moot.
The court also denied Ford’s motion to disqualify his counsel.
{¶17} Trial was set to begin on August 14, 2017. On that day, Ford was present in court
and again filed a motion to disqualify his counsel. Ford began to argue his motion and
ultimately screamed at the court, complaining that he was being “stifled.” As a result of this
conduct, deputies removed Ford from the courtroom. The court took a brief recess and
reconvened later that morning. Ford continued to disrupt the proceedings and repeatedly stated
that he did not want to be in the courtroom. The court ordered him to be returned to a holding
cell. At the start of voir dire, the court informed the jury that the defendant was not present in
the courtroom because he had asked to exercise his constitutional right not to be present.
{¶18} At trial, the state presented evidence in the form of photos, medical records, BCI
reports, and witness testimony. All three witnesses testified as to their assaults. L.G.’s sister
and S.G.’s mother both testified. The state also called various police officers, detectives,
medical professionals, and DNA analysts to testify as to various aspects of the investigation for
all three victims in this case. In addition, the state called two Evid.R. 404(B) witnesses who had
been victims of sexual assault by Ford in separate cases. These witnesses were introduced by
the state to establish Ford’s identity. A.H. served as a Evid.R. 404(B) witness for T.H.,
describing how she had been grabbed from the street and sexually assaulted on March 30, 2001.
J.H. served as a Evid.R. 404(B) witness for L.G. and S.G., describing how she was the victim of
a home invasion and sexual assault on April 2, 2004. During cross-examination, defense
counsel was questioning J.H. as to the identity of her attacker. The following exchange took
place:
DEFENSE
COUNSEL: You never got a full frontal view of the person who assaulted you, correct?
Is that a fair statement?
J.H.: Correct.
DEFENSE
COUNSEL: Okay.
J.H.: The case was made on DNA evidence.
Immediately following this exchange, defense counsel moved to strike J.H.’s testimony regarding
DNA evidence from the record, and the court ordered the testimony stricken and instructed the
jury to disregard it.
{¶19} Shortly thereafter, at the conclusion of J.H.’s testimony, defense counsel asked for
a mistrial at sidebar based on A.H.’s comment. In response, the prosecutor stated that its next
witness would testify regarding the DNA evidence in J.H.’s case, rendering J.H.’s comment
harmless. The court stated that, pending the introduction of the DNA evidence, the motion for
mistrial was denied.
{¶20} After the state rested its case, it moved to dismiss one count of gross sexual
imposition as against L.G. and all firearm specifications attached to Counts 15 through 19 as
against S.G. The court granted this motion and dismissed the count and specifications.
Defense counsel renewed his objections as to testimony and documentary evidence from the
Evid.R. 404(B) witnesses, and these objections were overruled. Defense counsel also made a
Crim.R. 29 motion for acquittal. The court denied this motion. Upon resting the defense’s
case, defense counsel renewed its Crim.R. 29 motion, and the court denied this motion.
{¶21} The jury returned guilty verdicts as to all counts pertaining to T.H. and L.G. The
jury returned not guilty verdicts as to all counts pertaining to S.G. Finally, Ford was found
guilty as to the sexually violent predator specifications. At sentencing, the court merged the
rape and kidnapping counts pertaining to L.G. The court sentenced Ford to a life term without
possibility of parole.
{¶22} Ford appeals, presenting the following assignments of error for our review:
I. Defense counsel provided ineffective assistance of counsel by failing to
suppress an unduly prejudicial photo array that was later presented at trial,
and failing to request separate trials for each alleged victim.
II. The trial court erred when it failed to grant appellant’s motion for a
continuance or holding a hearing in regards to appellant’s claim of
ineffective assistance prior to trial.
III. The trial court erred in admitting evidence that included testimony of prior
other bad acts pursuant to Evid.R. 404(B).
IV. The trial court erred in failing to declare a mistrial relating to comments
made that DNA proved the guilt of appellant in another case, made by the
state’s 404(B) witness at trial.
Law and Analysis
I. Ineffective Assistance of Counsel
{¶23} In his first assignment of error, Ford argues that he received ineffective assistance
of counsel for failing to suppress a photo array and failing to request separate trials for each
alleged victim.
{¶24} To establish ineffective assistance of counsel, a defendant must demonstrate that
(1) counsel’s performance at trial was seriously flawed and deficient and fell below an objective
standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the trial would have been different. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is
a probability sufficient to undermine confidence in the outcome of the proceedings. Id. at
687-688.
{¶25} In deciding a claim of ineffective assistance, reviewing courts indulge a strong
presumption that counsel’s conduct falls within the range of reasonable professional assistance,
and defendants must therefore overcome the presumption that the challenged action might be
considered sound trial strategy. State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373(1989), citing Strickland.
A. Photo Array
{¶26} Failure to file a motion to suppress constitutes ineffective assistance of counsel
only when the record demonstrates that the motion would have been successful if made. State
v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28, citing State v. Finch, 5th Dist.
Licking No. 11-CA-114, 2012-Ohio-4727, ¶ 28. In order to establish that a motion to suppress
would have been successful, a defendant is required to show that there was a basis to suppress
the evidence in question. Id.{¶27} “An identification derived from unnecessarily suggestive procedures, which have a
likelihood of leading to a misidentification, violates a defendant’s right to due process.” State v.
Wells, 8th Dist. Cuyahoga No. 98388, 2013-Ohio-3722, ¶ 63, citing Neil v. Biggers, 409 U.S.
188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Courts employ a two-prong analysis to determine
whether a challenged identification is admissible. Id. First, the court considers whether the
defendant has shown that the identification procedure was unduly suggestive. If the defendant
can establish this, the court then considers whether the identification, viewed under the totality of
the circumstances, is reliable despite its suggestive character. Id., citing State v. Harris, 2d
Dist. Montgomery No. 19796, 2004 Ohio 3570, ¶ 19, citing State v. Wills, 120 Ohio App.3d 320,
324, 697 N.E.2d 1072 (8th Dist. 1997).
{¶28} Ford has not established that the identification procedure employed here was
unduly suggestive. He argues that the procedure was unduly suggestive because it was preceded
by a detective telling L.G. that the case was being reopened and that there was a suspect in the
case. In support of this argument, he cites a case in which this court found that a photo array
was unduly suggestive where the detective administering the procedure informed the witness that
the suspect was one of the individuals included in the photo array. State v. Jones, 8th Dist.
Cuyahoga No. 85025, 2005-Ohio-2620, ¶ 16. This is not what occurred in the underlying case.
Although L.G. had been informed that there was a suspect in the case before the photo
identification was administered, at no point during the identification procedure was she told that
the suspect was in the photo array. On the contrary, the investigator administering the
procedure testified that he read L.G. the photo array instructions, including the admonition that
the array may or may not contain a photo of her attacker. Because Ford has not established that
the photo array procedure was unduly suggestive, there is no basis on which to conclude that a
motion to suppress this evidence would have been successful had defense counsel filed one.
Therefore, we cannot conclude that defense counsel’s decision not to file a motion to suppress
amounts to ineffective assistance of counsel.
B. Separate Trials
{¶29} Ford also argues that his counsel was ineffective for failing to move for separate
trials for each alleged victim. Specifically, he claims that he was prejudiced by incidents
involving three separate victims being tried to one factfinder. To determine whether defense
counsel was ineffective for failing to request severance, we consider whether the failure to file a
motion to sever was deficient and, if so, whether Ford was prejudiced by this failure. This
analysis, in turn, is based on whether joinder was appropriate in the first place.
{¶30} The Ohio Supreme Court has held that it is well settled that the law favors joining
multiple offenses in a single trial under Crim.R. 8(A). Bradley, 42 Ohio St.3d at 142, 538
N.E.2d 373. Joinder is permitted where the offenses “are of the same or similar character, or
are based on the same act or transaction * * *” Crim.R. 8(A). While joinder is favored,
defendants may move to sever pursuant to Crim.R. 14 upon an affirmative showing of prejudice.
State v. Torres, 66 Ohio St.2d 340, 342, 421 N.E.2d 1288 (1981). The state has two ways in
which it can attempt to challenge a defendant’s showing of prejudice. State v. Lott, 51 Ohio
St.3d 160, 163, 555 N.E.2d 293 (1990). First, it can defeat a claim of prejudice by showing that
it could have introduced evidence of other crimes under the other acts portion of Evid.R. 404(B)
if the offenses had been severed for trial. Id., citing Bradley v. United States, 140 U.S.App.D.C.
7, 433 F.2d 1113 (1969). Second, it can show that evidence of each crime joined at trial is
simple and direct. Id., citing State v. Roberts, 62 Ohio St.2d 170, 175, 405 N.E.2d 247 (1980).
If the state can satisfy the “simple and direct” test, an accused is not prejudiced by joinder
regardless of the admissibility of the evidence under Evid.R. 404(B). Id.{¶31} The “simple and direct” test is satisfied when evidence is simple and direct enough
that the jury can easily segregate the evidence. State v. Johnson, 88 Ohio St.3d 95, 110,
2000-Ohio-276, 723 N.E.2d 1054. Ford argues that the evidence in this case was not simple
and direct because the state relied on Evid.R. 404(B) evidence. We disagree. The crimes with
which Ford was charged were fundamentally similar as they affected each of the three victims.
The similarity of the charges in the indictment, however, does not preclude satisfaction of the
simple and direct evidence test. “‘Ohio appellate courts routinely find no prejudicial joinder
where the evidence is presented in an orderly fashion as to the separate offenses or victims
without significant overlap or conflation of proof.’” State v. Echols, 8th Dist. Cuyahoga No.
102504, 2015-Ohio-5138, ¶ 16, quoting State v. Lewis, 6th Dist. Lucas Nos. L-09-1224 and
L-09-1225, 2010-Ohio-4202, ¶ 33. Here, the evidence of each crime was presented without
significant overlap. The state introduced separate evidence for each victim. Each alleged
victim testified at length as to distinct acts allegedly committed by Ford at separate times and
separate places. The rape kit and DNA evidence for each victim was analyzed separately by
different witnesses. Finally, the jury returned a verdict of not guilty as to all charges pertaining
to victim S.G., presumably because it was able to segregate the evidence presented as to each
victim at trial. Because we find that joinder was appropriate in this case, we reject Ford’s
argument that he was prejudiced by his counsel’s failure to move for separate trials as to each
victim. Ford’s first assignment of error is overruled.
II. Motion for Continuance
{¶32} In his second assignment of error, Ford argues that the trial court erred when it
failed to grant his motion to continue trial or hold a hearing on the issue of his claim that his
counsel was ineffective. As an initial matter, we note that Ford’s arguments here appear to be
premised on several mischaracterizations of the procedural history in this case. First, Ford’s
August 9, 2017 motion to continue trial was granted, and trial was continued to August 14, 2017.
The basis of this motion was that Ford’s counsel had been engaged in another criminal trial.
Second, Ford seems to be conflating the motion to continue trial with his motions to disqualify
his counsel, all of which were denied. To the extent that he is now attempting to challenge the
court’s denial of his motions to disqualify his counsel, we find his argument unpersuasive.
{¶33} A trial court’s decision on a defendant’s motion to terminate counsel will not be
reversed absent an abuse of discretion. State v. Nicholson, 8th Dist. Cuyahoga No. 89245,
2007-Ohio-6653, ¶ 10, citing State v. Murphy, 91 Ohio St.3d 516, 523, 2001-Ohio-112, 747
N.E.2d 765; State v. Cowans, 87 Ohio St.3d 68, 73, 1999-Ohio-250, 717 N.E.2d 298. For a
court to grant a defendant’s motion to terminate counsel, a defendant must “show a breakdown in
the attorney-client relationship of such magnitude as to jeopardize a defendant’s right to effective
assistance of counsel.” Id., citing State v. Dawalt, 9th Dist. Medina No. 06CA0059-M,
2007-Ohio-2438, citing State v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988).
{¶34} Ford asserts that he claimed ineffective assistance of counsel prior to trial on the
basis that his trial counsel had not adequately communicated to him regarding this case, nor had
he been permitted to subpoena expert witnesses in the case. Both of these issues were
thoroughly addressed at pretrial hearings. With respect to the level of communication between
Ford and his counsel, counsel stated that he had intermittently communicated with Ford, although
he did admit that they had not communicated recently. Ford’s trial counsel also stated that
much of the discovery in the case was marked “counsel only,” which inherently limited the
extent to which he could communicate with Ford about his case. The record also reflects that
Ford refused to participate at various points in the proceedings and, on at least one occasion,
refused to confer with his counsel before trial. With respect to Ford’s claimed inability to
subpoena expert witnesses, Ford indicated that he wished to introduce evidence from an expert
he had used in a previous trial. This was the subject of the state’s motion in limine, which the
trial court granted, as there was no discernible relevance to the expert testimony. Further, at a
later point in the proceedings, trial counsel stated that he had communicated or attempted to
communicate with the witnesses identified by Ford and had concluded that any potential
testimony they could offer would be harmful to Ford’s defense.
{¶35} The record makes clear that Ford and his trial counsel had a volatile relationship.
This relationship, though strained, did not suffer from a complete breakdown in
communication. Therefore, we cannot conclude that the trial court abused its discretion by
denying Ford’s motion to disqualify his counsel. Based on the foregoing, Ford’s second
assignment of error is overruled.
III. Evid.R. 404(B)
{¶36} In Ford’s third assignment of error, he argues that the trial court erred in admitting
evidence that included testimony of prior bad acts pursuant to Evid.R. 404(B). Specifically,
Ford argues that the cumulative effect of introducing testimony from A.H. and J.H. substantially
prejudiced him because there was a reasonable probability that their testimony would be
construed as propensity evidence.
{¶37} Generally, “evidence that a defendant committed a crime other than the one for
which he is on trial is not admissible when its sole purpose is to show the accused’s propensity or
inclination to commit crime or that he acted in conformity with bad character.” State v.
Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 15, citing State v. Curry, 43
Ohio St.2d 66, 68, 330 N.E.2d 720 (1975). Evid.R. 404(B) provides that other acts evidence is
“not admissible to prove the character of a person in order to show that he acted in conformity
therewith.” Evid.R. 404(B). Exceptions to the rule provide that other acts evidence “may be
admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.” Id. Further, R.C. 2945.59 provides:
In any criminal case in which the defendant’s motive or intent, the absence of
mistake or accident on his part, or the defendant’s scheme, plan, or system in
doing an act is material, any acts of the defendant which tend to show his motive
or intent, the absence of mistake or accident on his part, or the defendant’s
scheme, plan, or system in doing the act in question may be proved, whether they
are contemporaneous with or prior or subsequent thereto, notwithstanding that
such proof may show or tend to show the commission of another crime by the
defendant.
{¶38} Decisions regarding the admissibility of other acts evidence are evidentiary
determinations that rest within the sound discretion of the trial court. State v. Morris, 132 Ohio
St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 22. A reviewing court will not disturb a trial
court’s evidentiary decision in the absence of an abuse of discretion that created material
prejudice. State v. Diaz, 2016-Ohio-5523, 69 N.E.3d 1182, ¶ 57 (8th Dist.), citing State v. Diar,
120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, ¶ 66. An abuse of discretion is more
than a mere error of law or judgment; instead, it implies that a trial court’s decision was
unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
{¶39} In determining whether other acts evidence is admissible, trial courts conduct a
three-step analysis: (1) consider whether the evidence is relevant pursuant to Evid.R. 401; (2)
consider whether the evidence is presented to prove the character of the accused in order to show
activity in conformity therewith or whether the evidence is presented for a legitimate purpose
pursuant to Evid.R. 404(B); and (3) consider whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice pursuant to Evid.R. 403. Williams at
¶ 20.
{¶40} Because Ford concedes in his brief that the testimony of A.H. and J.H. was
relevant, we begin with the second step of the Williams analysis. The state indicated that it
introduced the evidence in order to establish a behavioral fingerprint that it could use to establish
Ford’s identity beyond a reasonable doubt. “A certain modus operandi is admissible not
because it labels a defendant as a criminal, but because it provides a behavioral fingerprint
which, when compared to the behavioral fingerprints associated with the crime in question, can
be used to identify the defendant as the perpetrator.” State v. Lowe, 69 Ohio St.3d 527, 531,
1994-Ohio-345, 634 N.E.2d 616.
{¶41} Through the testimony of A.H. and J.H., the state was able to establish that Ford’s
behavior had certain characteristics that helped to establish his identity. J.H.’s testimony
illustrated several characteristics that mirrored L.G.’s testimony. Examples of this include that
both incidents began as home invasions where the suspect wore a mask and gloves, the suspect in
both incidents grabbed the victim around the throat, the suspect indicated to both victims that he
had been watching them, the suspect made the victim lay down on top of something, and the
suspect made the victim wait a specific period while he fled the scene. Similarly, A.H.’s
testimony illustrated several characteristics that mirrored T.H.’s testimony. In both victims’
accounts, the suspect was a tall black male who approached unknown females in similar
locations on Cleveland’s west side, the suspect ordered the victims to lie on top of their clothing,
and the suspect took an item or items of the victim’s clothing when he fled. All of these
similarities indicate that the state’s purpose in introducing A.H.’s and J.H.’s testimony was to
establish Ford’s identity.
{¶42} Finally, Ford argues that the probative value of this evidence was substantially
outweighed by the danger of unfair prejudice. In support of this assertion, Ford claims that
because L.G. could not see her attacker and the DNA evidence as to her assault was relatively
less compelling, the jury was forced to rely on propensity evidence. We disagree. All
evidence introduced against a criminal defendant is prejudicial. Unfairly prejudicial evidence,
though, tends to appeal to a jury’s emotional sympathies rather than intellect. Oberlin v. Akron
Gen. Med. Ctr., 91 Ohio St.3d 169, 172, 2001-Ohio-248, 743 N.E.2d 890, quoting
Weissenberger’s Ohio Evidence (2000) 85-87, Section 403.3. Here, the trial court gave the jury
a limiting instruction, directing the jury that it was not to consider the other acts evidence to
prove Ford’s character to show that he acted in conformity with that character. Despite Ford’s
assertion that the jury “relied” on inappropriate propensity evidence, we may presume that the
jury followed this limiting instruction. Moreover, in light of the extensive and specific evidence
presented by the state as to each criminal violation, together with the jury’s implied ability to
distinguish the evidence based on their distinct verdicts, including their not guilty verdict, we do
not find confusion or unfair prejudice. Based on the foregoing analysis, there is no indication
that the trial court abused its discretion in admitting other acts evidence in this case. Therefore,
Ford’s third assignment of error is overruled.
IV. Mistrial
{¶43} In Ford’s fourth and final assignment of error, he argues that the court erred by
failing to grant a mistrial as a result of two discrete pieces of testimony from Evid.R. 404(B)
witnesses A.H. and J.H. First, Ford asserts that the following exchange between A.H. and
defense counsel warranted a mistrial:
DEFENSE
COUNSEL: Were you able to see his facial features though?
A.H.: Yes.
DEFENSE
COUNSEL: Get a good look at them?
A.H.: Yes. There was one thing that really stood out to me.
DEFENSE
COUNSEL: What was it?
A.H.: It was a gap between his bottom teeth, which was different.
DEFENSE
COUNSEL: When you saw the man in 2005 and recognized that person as the
person that attacked you, and you said you called detectives and told
them that, did you tell them that detail as well?
A.H.: Yes. This is what I wanted to know, did he have that. And he couldn’t
answer me at the time.
DEFENSE
COUNSEL: Did he come to answer you at any time after that though?
A.H.: After DNA had already come back.
DEFENSE
COUNSEL: And what did you learn?
A.H.: With DNA?
{¶44} Defense counsel objected, and the trial court sustained this objection. A.H.’s
testimony then concluded.
{¶45} The second piece of testimony that Ford argues warrants a mistrial is the exchange
that took place between defense counsel and J.H. in which J.H. testified that the case was made
on DNA evidence. According to Ford, both of these comments mention DNA evidence
establishing a prior case against him.
{¶46} The granting or denial of a mistrial “rests in the sound discretion of the trial court
and will not be disturbed on appeal absent an abuse of discretion.” State v. Iacona, 93 Ohio
St.3d 83, 100, 2001-Ohio-1292, 752 N.E.2d 937, citing State v. Sage, 31 Ohio St.3d 173, 182,
510 N.E.2d 343 (1987). A mistrial is an exceptional remedy that is to be declared “only when
the ends of justice so require and a fair trial is no longer possible.” Cleveland v. Gonzalez, 8th
Dist. Cuyahoga No. 85070, 2005-Ohio-4413, ¶ 44, citing State v. Franklin, 62 Ohio St.3d 118,
127, 580 N.E.2d 1 (1991).
{¶47} First, we note that while Ford objected to A.H.’s testimony, he did not request a
mistrial on the basis of this comment at trial. Second, we disagree with Ford that reference to
DNA evidence “coming back” is tantamount to a reference to a prior conviction. To the extent
that these comments may have impermissibly referenced prior convictions, such brief and
ambiguous comments do not render a fair trial impossible. The Ohio Supreme Court has held
that where reference to a prior arrest or conviction was fleeting and promptly followed by a
curative instruction, such a reference did not unfairly prejudice the accused so as to require a
mistrial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242; State v.
Garner, 74 Ohio St.3d 49, 1995-Ohio-168, 656 N.E.2d 623. Here, the statements in question
only alluded to DNA evidence against Ford, unlike the more explicit references to arrests and
convictions in Garner and Trimble. Further, both statements were immediately addressed by
the trial court. The trial court sustained defense counsel’s objection to A.H.’s testimony. The
court also struck the relevant portion of J.H.’s testimony from the record. Because any potential
prejudice from this testimony was limited, and it was appropriately addressed by the trial court,
the ends of justice in this case did not require a mistrial. Ford’s fourth assignment of error is
overruled.
{¶48} We affirm the judgment of the trial court.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been affirmed,
any bail pending appeal is terminated. Case remanded to the trial court for execution of
sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, PRESIDING JUDGE
MELODY J. STEWART, J., and
PATRICIA ANN BLACKMON, J., CONCUR