State v. Williams ( 2021 )

[Cite as State v. Williams, 2021-Ohio-1250.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Craig R. Baldwin, P. J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Earle E. Wise, Jr., J.
-vs-
Case No. 20 CAA 03 0017
RONALD M. WILLIAMS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 19 CRI 07 0511
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: April 12, 2021
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL WILLIAM T. CRAMER
PROSECUTING ATTORNEY 470 Olde Worthington Road
JOEL C. WALKER Suite 200
ASSISTANT PROSECUTOR Westerville, Ohio 43082
145 North Union Street, 3rd Floor
Delaware, Ohio 43015
[Cite as State v. Williams, 2021-Ohio-1250.]
Wise, John, J.
{¶1} Defendant-Appellant Ronald Williams appeals the judgment entered by the
Delaware County Court of Common Pleas convicting him on eleven counts of Rape of a
child under the age of thirteen in violation of R.C. 2907.02(A)(1)(b) and five counts of
forcible Rape in violation of R.C. 2907.02(A)(2). Plaintiff-Appellee is the State of Ohio.
The relevant facts leading to this appeal are as follows.
FACTS AND PROCEDURAL HISTORY
{¶2} On May 31, 2019, Appellant was indicted on six counts of Rape involving a
child under the age of thirteen years old in violation of R.C. 2907.02(A)(1)(b), all felonies
in the first degree. Counts one and two alleged Appellant knew the victim was under ten
years old. All six allegations were against the same victim, ZS.
{¶3} On July 25, 2019, the State filed a new indictment which included the
original six counts of Rape against ZS, and added ten counts of Rape and one count of
Gross Sexual Imposition against AW.
{¶4} On October 3, 2019, Appellant filed a Motion to Exclude any Evidence of
Other Acts, Crimes or Wrongs seeking to prohibit Appellee from presenting evidence of
other alleged misconduct involving criminal convictions, alleged conduct, or other
investigations.
{¶5} On December 19, 2019, the trial court denied Appellant’s Motion to Exclude
any Evidence of Other Acts, Crimes or Wrongs.
{¶6} On January 21, 2020, Appellant’s jury trial began.
{¶7} At trial, ZS testified she was born in September of 1999. When she was nine
years old, she moved in with her mother, where she met Appellant. Approximately three
Delaware County, Case No. 20 CAA 03 0017 3
weeks after moving in, ZS was forced to perform oral sex on Appellant. While still nine
years old, ZS went to live with Appellant at his house, where she first met Appellant’s
wife, Grace Williams. ZS lived at Appellant’s house with Appellant, Grace, and ZS’s
sister, AW.
{¶8} While living at Appellant’s house, ZS testified she was not allowed to have
friends over or go outside. She said that Appellant always bathed her and her sister even
though ZS could wash herself. ZS lived at the house on and off until she was eleven
years old. ZS testified that while still nine years old and living with Appellant, she went
to Appellant’s room looking for AW. Grace and AW were asleep, and Appellant was
awake, watching television. Appellant told ZS to take her underwear off, he then put
lotion on his penis and penetrated her vagina. Appellant did not ejaculate in her, he would
always use a napkin.
{¶9} Appellant then recalled several more instances of sexual abuse and said
she was abused more times than she could count.
{¶10} AW also testified at trial. AW testified she was born in 2003 to the same
mother as ZS. When AW was about six years old, she moved in with Appellant and
Grace, Appellant’s girlfriend. Starting when AW was six years old, Appellant made AW
perform oral sex on him. She stated this happened routinely when Grace left the house
until she was twelve years old.
{¶11} When AW was twelve and living with Appellant, Appellant penetrated AW’s
vagina with his finger and his penis. Appellant and AW continued to have vaginal
intercourse regularly for the next three years. Appellant engaged in anal intercourse with
Delaware County, Case No. 20 CAA 03 0017 4
AW when she was thirteen years old. Appellant never ejaculated in her; he always used
a napkin.
{¶12} EB lived with Appellant, Appellant’s girlfriend Shirley, and Shirley’s two kids,
LC and ML, for several years starting around 1987. EB testified Appellant would bathe
LC and ML. She often saw Appellant fondling and pinching LC’s breasts. EB testified
that after Shirley would leave for work in the morning, Appellant would routinely get LC
and ML out of bed and take them to his bed room. EB testified she could hear moaning,
growling, and the bed moving coming from Appellant’s bedroom.
{¶13} LC then testified that Appellant began molesting her around age seven. The
first time LC’s mother, Shirley, was entertaining guests, and Appellant asked LC to come
to his room. Appellant then closed the door. Appellant asked if LC loved him and then
felt her all over under her dress. Appellant said if she was a good girl, they could do it
again.
{¶14} LC testified that the molestation progressed from there. Appellant made her
watch pornography and then act out what was on screen. When LC was eight years old,
Appellant had vaginal intercourse with her. This continued to age twelve. Appellant never
ejaculated inside her. He always used a napkin or towel.
{¶15} At the close of the prosecution’s case, Appellant moved to have the charges
dismissed on a Crim.R. 29 motion. The trial court acquitted Appellant of Gross Sexual
Imposition.
{¶16} On January 27, 2020, the jury returned a verdict of guilty on the remaining
sixteen counts of Rape and found all of the force and age allegations to be true.
Delaware County, Case No. 20 CAA 03 0017 5
{¶17} Appellant waived a jury trial on the sexually violent predator specifications
and a separate hearing was held to address the specifications. On January 30, 2020, at
the hearing, the trial court took judicial notice of all the evidence presented at trial and
the parties presented arguments.
{¶18} On February 18, 2020, the trial court imposed life without parole on each of
the eleven counts of rape of a minor, all to be served concurrently. The court imposed
ten-years-to-life on each of the five counts of forcible rape, all to be served consecutively.
The court granted Appellant 216 days of jail credit, imposed five years of mandatory
post-release control, and provided Appellant with notice of his registration as a Tier III
sex offender.
ASSIGNMENT OF ERROR
{¶19} On March 12, 2020, Appellant filed a notice of appeal raising the following
Assignment of Error:
{¶20} “I. THE TRIAL COURT VIOLATED DUE PROCESS, EVID.R. 404(B), AND
R.C. 2945.59 BY ADMITTING EVIDENCE OF PRIOR ACTS OF CHILD MOLESTATION
FOR THE PURPOSE OF ARGUING THAT APPELLANT HAD A PROPENSITY TO
MOLEST CHILDREN.
I.
{¶21} Appellant, in his sole assignment of error, argues that the trial court erred in
admitting evidence of prior acts of child molestation. We disagree.
a. Standard of Review
{¶22} “Ordinarily, a trial court is vested with broad discretion in determining the
admissibility of evidence in any particular case, so long as such discretion is exercised
Delaware County, Case No. 20 CAA 03 0017 6
in line with the rules of procedure and evidence.” Rigby v. Lake City, 58 Ohio St.3d 269,
271 (1991). The appellate court must limit its review of the trial court’s admission or
exclusion of evidence to whether the trial court abused its discretion. Id. The abuse of
discretion standard is more than an error of judgment; it implies the court ruled arbitrarily,
unreasonably, or unconscionably. Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983).
Generally, all relevant evidence is admissible. Evid.R. 402.
b. Admissibility of EB’s and LC’s Testimony
{¶23} Evid.R. 404(B) provides:
(B) Other crimes, wrongs or acts. Evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.
{¶24} 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.
Delaware County, Case No. 20 CAA 03 0017 7
{¶25} Rule 404(B) of the Ohio Rules of Evidence and R.C. 2945.59 preclude
admission of other acts evidence to prove a character trait in order to demonstrate
conduct in conformity with that trait. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-
5695, 983 N.E.2d 1278, ¶16. There are, however, exceptions to the rule. Evidence of
other crimes, wrongs, or acts of an accused tending to show the plan with which an act
is done may be admissible for other purposes, such as those listed in Evid.R. 404(B); to
show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
{¶26} In considering other acts evidence, trial courts should conduct a three-step
analysis. The first step is to consider whether the other acts evidence is relevant to
making any fact that is of consequence to the determination of the action more or less
probable than it would be without the evidence. Evid.R. 401. Next, the trial court must
consider whether evidence of the other crimes, wrongs, or acts is presented to prove the
character of the accused in order to show activity in conformity with the character or
whether the other acts evidence is presented for a legitimate purpose, such as those
stated in Evid.R. 404(B), proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident. Finally, a trial court is to consider
whether the probative value of the other acts evidence is substantially outweighed by the
danger of unfair prejudice. See Evid.R. 403, Williams, at ¶¶19-20.
{¶27} “Because R.C. 2945.59 and Evid.R. 404(B) codify an exception to the
common law with respect to evidence of other acts of wrongdoing, they must be
construed against admissibility, and the standard for determining admissibility of such
evidence is strict.” State v. Broom, 40 Ohio St.3d 277, 281-82, 533 N.E.2d 682 (1988).
Delaware County, Case No. 20 CAA 03 0017 8
As cautioned by the Ohio Supreme Court in State v. Lowe, 69 Ohio St.3d 527, 634
N.E.2d 616 (1994), “…we therefore must be careful…to recognize the distinction
between evidence which shows that a defendant is the type of person who might commit
a particular crime and evidence which shows that a defendant is the person who
committed a particular crime.” Id. at 530. Evidence to prove the character of person the
defendant is to show he acted in conformity therewith is barred by Evid.R. 404(B).
{¶28} We must first determine whether the other acts evidence is relevant to
making any fact of consequence to determination of the action more or less probable
than it would be without the evidence. In Williams, the Ohio Supreme Court found
testimony of prior acts describing grooming techniques were relevant to show the
defendant’s intent was sexual gratification. Williams, supra, ¶22. Gross Sexual
Imposition, with which the defendant was charged, requires “sexual contact.” R.C.
2907.05(A)(1). R.C. 2907.01 defines “sexual contact” to require the touching be for the
purpose of “sexual arousing or gratifying either person.” In the instant case, Appellant
was charged with both Rape and Gross Sexual Imposition, making intent of sexual
gratification an element which the State must prove.
{¶29} The second step is to consider whether the evidence of the other crimes,
wrongs, or acts is presented to prove the character of the accused in order to show
conformity therewith, or whether the acts evidence is presented for a legitimate purpose.
{¶30} In the case sub judice, Appellee was permitted to introduce the testimony
of another child Appellant raped in similar fashion to that of ZS and AW, raping young
female children living in the same home as Appellant when other adults were not around.
In its Judgment Entry dated December 19, 2019, the trial court stated, “the sought-after
Delaware County, Case No. 20 CAA 03 0017 9
testimony is relevant because it may tend to prove what the prosecution alleges was the
defendant’s motive and intent: to derive sexual gratification from groping and raping
children.” We find the legitimate purpose of proving Appellant’s intent to derive sexual
gratification from groping and raping children relevant for the charge of Gross Sexual
Imposition.
{¶31} The final step is to consider whether the probative value of the other acts
evidence is substantially outweighed by the danger of unfair prejudice. In the case sub
judice, the trial court gave a limiting instruction before the testimony, after the testimony,
and at the close of trial, that the evidence may not be considered as character evidence
and that Appellant acted in accordance with any such character trait. In Williams, the
Ohio Supreme Court allowed the testimony because:
The evidence is not unduly prejudicial, because the trial court
instructed the jury that this evidence could not be considered to show that
Williams had acted in conformity with a character trait. This instruction
lessened the prejudicial effect of A.B.’s testimony, and A.B. corroborated
J.H.’s testimony about the sexual abuse, which had been denied by
Williams. Thus Evid.R. 404(B) permitted admission of evidence of William’s
prior crime because it helped to prove motive, preparation, and plan on the
part of Williams. The prejudicial effect did not substantially outweigh the
probative value of that evidence.134 Ohio St.3d 521, ¶24.
{¶32} In the case sub judice, the trial court instructed the jury that the evidence
could not be considered to show that Appellant had acted in conformity with a character
trait. The testimony tended to show Appellant’s motive to show sexual gratification for
Delaware County, Case No. 20 CAA 03 0017 10
groping and raping children. The prejudicial effect did not outweigh the probative value
of that evidence.
{¶33} Moreover, assuming, arguendo, the trial court erred in admitting testimony
from LC and EB, we find any error was harmless. Crim.R. 52(A) defines harmless error
as “[a]ny error, defect, irregularity, or variance which does not affect substantial rights
shall be disregarded.” Before constitutional error can be considered harmless, we must
be able to “declare a belief that it was harmless beyond a reasonable doubt.” Chapman
v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Where no reasonable
possibility exists that the unlawful testimony contributed to a conviction, the error is
harmless and therefore will not be grounds for reversal. State v. Lytle, 48 Ohio St.2d
391, 358 N.E.2d 623 (1976), paragraph three of the syllabus, vacated on other grounds
in Lytle v. Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).
{¶34} In the case at bar, there was overwhelming evidence, as set forth above, of
Appellant’s guilt. The two victims testified in detail how Appellant raped them when they
were little girls, both recounted multiple specific instances and identified Appellant as
their abuser. Accordingly, we find any error in admitting the testimony did not have an
impact on the verdict, the error was harmless beyond a reasonable doubt, and the other
evidence in the case established Appellant's guilt beyond a reasonable doubt.
c. Prosecutor’s statements during closing arguments.
{¶35} Appellant argues the prosecutor is arguing Appellant is acting in conformity
with a character trait when the prosecutor remarked Appellant is attracted to young girls
and is motivated to have sexual relations with them.
Delaware County, Case No. 20 CAA 03 0017 11
{¶36} As Appellant did not object to the remarks during closing arguments, he has
waived all but plain error. An error not raised in the trial court must be plain error for an
appellate court to reverse. State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978) at
paragraph one of the syllabus; Crim.R. 52(B). To prevail under a plain error analysis,
Appellant bears the burden of demonstrating that the outcome of the trial clearly would
have been different but for the error. Id. at paragraph two of the syllabus. Notice of plain
error “is to be taken with the utmost caution, under exceptional circumstances and only
to prevent a manifest miscarriage of justice.” Id. at paragraph three of the syllabus.
{¶37} “A presumption always exists that the jury has followed the instructions
given to it by the trial court.” Pang v. Minch, 53 Ohio St.3d 186, 187, 559 N.E.2d 1313(1990), at paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d 716, 562
N.E.2d 163.
{¶38} As noted above, the trial court instructed the jury that the evidence could
not be considered to show that Appellant had acted in conformity with a character trait.
Appellant has not demonstrated that “but for” this isolated statement by the prosecutor,
he would not have been convicted of the crimes.
{¶39} We find the trial court did not abuse its discretion by admitting evidence of
prior acts of child molestation.
Delaware County, Case No. 20 CAA 03 0017 12
{¶40} Appellant’s sole Assignment of Error is overruled.
{¶41} For the foregoing reasons, the judgment of the Court of Common Pleas,
Delaware County, Ohio, is hereby affirmed.
By: Wise, John, J.
Baldwin, P. J., concurs.
Wise, Earle, J., concurs separately
JWW/br 0322
Delaware County, Case No. 20 CAA 03 0017 13
Wise, Earle, J., concurs separately.
{¶ 42} I concur in the judgment of the majority.
{¶ 43} While I find error, I find it to be harmless and specifically concur with
paragraphs 33 and 34 of the majority opinion.
{¶ 44} I write separately because I find the other-acts evidence should not have
been admitted.
{¶ 45} The trial court’s December 19, 2019, judgment entry allowed the other-acts
evidence because it found the evidence fit several of the exceptions in Evid.R. 404(B)
and R.C. 2945.59.
STANDARD OF REVIEW
{¶ 46} The Supreme Court of Ohio recently reviewed the admission of other-acts
evidence in two cases decided on September 22, 2020; State v. Hartman, 161 Ohio St.3d
214, 2020-Ohio-4440, 161 N.E.3d 651, and State v. Smith, --- Ohio St.3d ---, 2020-Ohio-
4441, --- N.E.3d ---. In Hartman at ¶ 19, the court sought to “clear up some of the
confusion that exists regarding the use of other-acts evidence.” One issue it made clear
was that “the admissibility of other-acts evidence pursuant to Evid.R. 404(B) is a question
of law.” Id. at ¶ 22. The question of “whether the evidence is offered for an impermissible
purpose does not involve the exercise of discretion” and is subject to review de novo. Id.
If a permissible nonpropensity purpose is found, the trial court then has discretion to admit
other-acts evidence. Id.
Delaware County, Case No. 20 CAA 03 0017 14
PURPOSES FOR WHICH OTHER-ACTS EVIDENCE WERE ADMITTED
{¶ 47} The trial court considered whether the evidence supported permissible
purposes pursuant to R.C. 2945.59 and Evid.R. 404(B) and found several exceptions. In
its judgment entry at page 7, the trial court found:
The factual overlap between the prospective testimonies [of the witnesses]
may point to a motive and intent: engaging in the sexual abuse of
minors for sexual gratification. Detailed other-acts testimony here may
help the jury identify [appellant] by a common scheme, plan, system, or
modus operandi – a “behavioral fingerprint” – aimed at the targeting,
grooming, and raping of children. The testimony about prior acts of child
sex abuse may cast significant doubt, too, on the possibility that any
of the alleged conduct in the present matter was accidental. (Citation
omitted, emphasis added.)
{¶ 48} The trial court further defined the purposes of the other-acts evidence in the
instructions it gave to the jury prior to deliberation (T. at 955-956):
If you find that the evidence about other acts on the part of the Defendant
is true, then you may consider that evidence only for the purpose of deciding
whether that evidence proves: one, the absence of a mistake or an accident
on his part on the dates of the crimes at issue in this case; two, his motive
or his intent on the dates of the crimes at issue in this case; three, his
Delaware County, Case No. 20 CAA 03 0017 15
knowledge of the circumstances surrounding the crimes at issue in this
case; or, four, his use of a particular method of selecting, grooming, and
sexually abusing minor victims. The evidence about other acts may not be
considered by you for any other purpose. (Emphasis added.)
ANALYSIS OF OTHER-ACTS EVIDENCE
{¶ 49} The four nonpropensity reasons for admission of the evidence given by the
trial court to the jury will be discussed out of order.
1. ABSENCE OF A MISTAKE OR AN ACCIDENT
{¶ 50} The trial court first instructed the jury the other-acts evidence may be used
to show appellant’s actions were not a mistake nor accidental. Appellant plead not guilty
making a general denial of all allegations. He did not testify, nor did the police testify as
to statements made by appellant. The record does not reflect any indication he ever
claimed mistake or accident. Additionally, the state made no argument that appellant
raised a defense claiming the acts were accidental.
{¶ 51} In Smith, supra, the Supreme Court of Ohio addressed lack of mistake
evidence. In Smith, the defendant was charged in 2016 with rape, gross sexual imposition
and disseminating matter harmful to a juvenile. The victim was his granddaughter. The
allegations were he rubbed oil on her body under her clothes on her chest, buttock and
vagina then licked her breast and vagina. He played a pornographic film showing oral and
vaginal intercourse. The next morning he pressed his penis into her backside and began
to remove her underwear; she moved away and he stop. He denied any of this was for
sexual purposes. He admitted that he rubbed lotion on the child’s body, but any
Delaware County, Case No. 20 CAA 03 0017 16
inappropriate touching of private parts was accidental. He claimed that if his penis did
touch her it was accidental because he tends to get erections in his sleep. He further
claimed an R-rated movie accidentally began to play for a few seconds when he
attempted to play a cartoon on a DVD. The state sought to admit other-acts evidence
from a 1986 allegation that he did similar things to one of his daughters. The Smith court
held the prior testimony was admissible to rebut the defendant’s claim that his 2016 acts
were accidental, inadvertent or a mistake.
{¶ 52} In the instant case there is no such claim by appellant. In Hartman, supra,the Supreme Court of Ohio at ¶ 27 stated, “it is not enough to say the evidence is relevant
to a nonpropensity purpose. The nonpropensity purpose for which the evidence is offered
must go to a ‘material’ issue that is actually in dispute….”
{¶ 53} Because there is no claim of mistake or accident before the jury, there is
nothing for the prosecution to rebut on this issue. I find the evidence may not be admitted
for a legitimate purpose under this exception to the rule.
3. KNOWLEDGE OF THE CIRCUMSTANCES SURROUNDING THE CRIMES
{¶ 54} This purpose was not addressed in the trial court’s judgment entry. It is
unclear from the record exactly what nonpropensity purpose, “his knowledge of the
circumstances surrounding the crimes,” refers to in this case. Typically, this type of other-
acts evidence is admitted to show a defendant’s awareness, such as knowledge that he
possessed contraband or his awareness of illegal activity. I find under the facts of this
case, this is not a permissible purpose to admit other-acts evidence.
PURPOSES 2. AND 4.
Delaware County, Case No. 20 CAA 03 0017 17
{¶ 55} The next two purposes are the focus of the case as highlighted by the
prosecutors’ statements to the jury.
{¶ 56} In closing argument, the state told the jury: “So for our purposes, we’re
asking that you consider this evidence of other acts on the issues of motive and method.
Specifically, his motive and his intent to engage in sexual conduct with minor girls and his
method of selecting, grooming, and sexually abusing these minor girls.” T. at 908. Later
in rebuttal, the state again argued to the jury how it should use this evidence. “So yes, of
course you can consider [L.C.’s] testimony for those purposes that we discussed in our
first closing which was to show method and to show motivation that Ron Williams is
attracted to underage girls.” T. at 944.
4. USE OF A PARTICULAR METHOD OF SELECTING, GROOMING, AND
SEXUALLY ABUSING MINOR VICTIMS
{¶ 57} The state sought to use the other-acts evidence to show appellant used a
particular method of selecting, grooming and abusing his victims. In its judgment entry,
the trial court found the other-acts evidence may be helpful to the jury to identify appellant
by this common scheme or plan, modus operandi or behavioral fingerprint.
{¶ 58} This type of other acts evidence is a permissible purpose if the identity of
the actor is an issue in actual dispute. “[Modus operandi] is evidence of signature,
fingerprint-like characteristics unique enough ‘to show that the crimes were committed by
the same person.’ Evidence of modus operandi is relevant to prove identity.” Hartman,
supra, at ¶ 37. (Citations omitted.)
{¶ 59} In the instant case there is no question as to who may have done the acts.
Both victims were clear the actor was appellant. The only question before the jury was
whether the acts occured. I find the other-acts evidence to prove identity by showing
Delaware County, Case No. 20 CAA 03 0017 18
modus operandi or a behavioral fingerprint is not permissible because identity is not in
dispute.
{¶ 60} In State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), the Supreme
Court of Ohio discussed the two factual situations where the defendant’s scheme, plan
or system pursuant to R.C. 2945.59 is relevant. One is identity, which as discussed above
is not at issue here. The other, as cited in Curry at 73 is when:
[T]he “other acts” form part of the immediate background of the alleged act
which forms the foundation of the crime charged in the indictment.
***
To be admissible pursuant to this sub-category of ‘scheme, plan or system’
evidence, the ‘other acts’ testimony must concern events which are
inextricably related to the alleged criminal act. The July 8, 1972, incident
and the December 22, 1972, incident are not so related; they are
chronologically and factually separate occurrences.
{¶ 61} The Hartman court at ¶ 13 cited Curry to re-emphasize the connection of
the other-acts evidence to the current crime:
Common-plan evidence generally concerns events that are “inextricably
related’ to the crime charged. Curry, 43 Ohio St.2d at 73. The other acts
form the “immediate background” of the present crime: they are typically
either part of the “same transaction” as the crime for which the defendant is
Delaware County, Case No. 20 CAA 03 0017 19
on trial or they are part of “a sequence of events” leading up to the
commission of the crime in question.
{¶ 62} In Curry there was a five to six-month gap between the charged acts and
the other-acts. In our current case there is a at least a seventeen-year gap between the
“chronological and factually separate” other-acts and the current charges. I find the other-
acts evidence is not admissible pursuant to a common scheme, plan or system exception.
2. MOTIVE OR INTENT
{¶ 63} Motive and intent can be distinct issues. In Hartman at ¶ 48, motive is
described as a specific reason for committing a crime. If a person commits a murder to
cover up a previous crime, the other-acts evidence of the previous crime may tend to
prove the motive for the murder, a permissible nonpropensity purpose. Id. Motive is not
typically an element of a criminal offense. Intent is normally an element. Did a person act
with the purpose to cause a certain result which culminated in a criminal offense? In the
murder example, the motive may be to want a person dead; the intent is the mental
purpose to do the act to cause the death (to pull the trigger of a gun). In this case, the
trial court and the arguments of the prosecutor appear to treat the terms as one. The
evidence was admitted to show appellant’s intent was to derive sexual gratification from
the acts alleged in the charge of gross sexual imposition.
{¶ 64} Generally, intent is “not a material issue for other-acts purposes unless it is
genuinely disputed – in most cases, ‘the act speaks for itself.’ ” Hartman at ¶ 55. However,
when the crime charged is one of specific intent, such intent is a material issue in the
case. Id. The crime of gross sexual imposition requires the state prove appellant had the
Delaware County, Case No. 20 CAA 03 0017 20
specific intent to perform the act(s) for the sexual gratification of himself or another. This
is a potential proper purpose for other-acts evidence to be considered. However, based
upon the facts of this case, a more thorough examination of the purpose is warranted.
{¶ 65} The decision on whether to allow other-acts evidence on the single count of
gross sexual imposition should not be considered in a vacuum. Appellant faced sixteen
counts of rape as well. The testimony relating to these counts was replete with explicit
accounts of sexual conduct that left no question as to appellant’s intent. A single jury
heard all of the testimony from both victims. There is certainly an argument, in light of the
extensive testimony in the rape counts, that the element of sexual gratification in gross
sexual imposition is not in actual dispute.
{¶ 66} Assuming arguendo, the permissible purpose to show intent by way of the
other-acts evidence is justified, in my view the Evid.R. 403 balancing test is still a bar to
this evidence. The Hartman court at ¶ 32 advised courts to, “consider whether the
prosecution is able to present alternative evidence to prove the same fact through less
prejudicial means…” In this case, the attendant sixteen counts of rape provided the jury
with extensive and overwhelming evidence to find intent. This other-acts evidence is
certainly probative of intent. However, it does not show anything about appellant’s intent
not already shown by the extensive testimony in the current charges. I find the probative
value of the other-acts evidence is substantially outweighed by the danger of unfair
prejudice. Therefore, I would prohibit the admission of the other-acts evidence based
upon the Evid.R. 403 balancing test.
Delaware County, Case No. 20 CAA 03 0017 21
{¶ 67} However, as indicated above, I find the error to admit the other-acts
evidence to be harmless, and I join in the judgment of the majority in affirming the
conviction of appellant.