State v. O'Connell , 2020 Ohio 1369 ( 2020 )

[Cite as State v. O'Connell, 2020-Ohio-1369.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-180600
C-180601
Plaintiff-Appellee, : TRIAL NOS. B-1605877
B-1802724
vs. :
DANIEL W. O’CONNELL II, : O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Reversed and Cause Remanded
Date of Judgment Entry on Appeal: April 8, 2020
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Evid.R. 404(B) exists to guard against the “propensity” inference—in
other words, wielding past bad acts to prove action in conformity therewith, which
facilitates a conviction based on prior conduct rather than the evidence at hand. In
this prosecution for rape and gross sexual imposition, the state presented evidence of
allegations (not a conviction) that the defendant perpetrated similar conduct over 20
years earlier. The state insisted that such actions constituted a common “plan”
under Evid.R. 404(B), and the trial court agreed, admitting this evidence without any
limiting instruction. Our review convinces us that the trial court abused its
discretion in this regard, and given the prominence of this evidence at trial
(testimony the trial court described as “riveting”), we must reverse and remand for a
new trial.
I.
{¶2} Underlying this case is a trio of victims, each related to defendant-
appellant Daniel O’Connell and each alleging that he sexually assaulted them at
various times. The allegations span decades and include conduct constituting gross
sexual imposition and rape perpetrated against the victims while in Mr. O’Connell’s
care. After some of these allegations came to light, Mr. O’Connell was indicted in
2017 on charges involving gross sexual imposition, felonious sexual penetration, and
rape. The genesis of these indictments flowed from allegations of sexual abuse made
by Mr. O’Connell’s then nine-year-old daughter, K.O. Divulging these allegations to
her school counselor in 2016, K.O.’s accusations ultimately attracted the attention of
the authorities, but she subsequently recanted.
{¶3} Later, K.O. would return to her story, and she offered further
disclosures of more abuse. Eventually, these allegations prompted the state to revisit
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OHIO FIRST DISTRICT COURT OF APPEALS
sexual abuse claims lodged by another of Mr. O’Connell’s daughters, T.P., and his
cousin, K.L., years prior, which were not pursued at the time of their reporting.
Therefore, the 2017 indictment also included one count each of rape and gross sexual
imposition of T.P., along with one count of rape and one count of felonious sexual
penetration based on K.L.’s allegations.
{¶4} The state encountered problems with the prosecution as it related to
K.L., since those assaults allegedly occurred in 1995, more than 20 years prior to the
indictment and when Mr. O’Connell was younger than 15 years old. He accordingly
moved to dismiss, which the trial court eventually granted on statute of limitations
and jurisdictional grounds.
{¶5} Nevertheless, following Mr. O’Connell’s motion to dismiss the counts
related to K.L., the state tendered its “Notice of Intention to Use the Evidence,”
alerting the trial court of its intention to present K.L.’s testimony as evidence of
“other acts” of the “same and similar conduct” to “show the defendant’s scheme, plan
and system for carrying out the sexual abuse” and “to show the defendant’s intent,
plan and motive,” pursuant to R.C. 2945.59 and Evid.R. 404(B). Approximately a
month later, the state also marshalled a second indictment, based on further
disclosures by K.O., charging three additional counts of rape.
{¶6} As trial proceedings progressed, Mr. O’Connell objected to the state’s
request to introduce K.L.’s testimony, emphasizing the protections engrained in
Evid.R. 404(B). Defense counsel explained: “Your Honor, we’re talking now about
allegations that are over 20 years old. * * * And I believe that it is manifestly unfair *
* * to pile on witnesses in an attempt to sway the jury[.]” The trial court, however,
ultimately deemed the testimony admissible because the conduct was “pretty much
same and similar” to the charged offenses involving T.P. and K.O.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶7} K.L., T.P., and K.O. all proceeded to testify at trial, describing the
various instances of abuse they experienced. Mr. O’Connell took the stand in his own
defense, denying that he ever sexually abused his daughters or K.L. During cross-
examination, Mr. O’Connell endeavored to paint a conspiratorial portrait of his
daughters, positing that the girls had spent time together during holiday family
gatherings, enabling them an opportunity to collaborate on their accusations, egged
on by other adults such as K.O.’s mother and T.P.’s grandmother.
{¶8} The jury eventually convicted Mr. O’Connell on all but one charge, the
rape of T.P. Mr. O’Connell received five years on each of the three gross sexual
imposition charges and four life sentences without the possibility of parole for each
of the remaining rape charges, all to run consecutively.
{¶9} From these convictions Mr. O’Connell now appeals, raising five
assignments of error. Mr. O’Connell challenges the trial court’s admission of “other
acts” evidence via K.L.’s testimony and the trial court’s decision to allow written
transcripts as evidentiary exhibits. He also alleges ineffective assistance of counsel,
attacks his convictions as against both the sufficiency and weight of the evidence, and
criticizes his sentence as contrary to law.
II.
{¶10} We begin with Mr. O’Connell’s first assignment of error, which we find
dispositive of this appeal. In his first assignment of error, Mr. O’Connell maintains
that the trial court erred in permitting K.L. to testify, as it violated the general
prohibition on propensity evidence, i.e., introducing a defendant’s past acts to prove
that he or she committed a charged offense by acting in conformity with a character
trait. We address first the state’s waiver argument before turning to the merits.
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OHIO FIRST DISTRICT COURT OF APPEALS
A.
{¶11} Before addressing the merits of this assignment of error, we consider
the state’s suggestion on appeal that Mr. O’Connell waived this challenge by failing to
specifically object on Evid.R. 404(B) grounds. We find this unpersuasive, concluding
that he properly preserved the error.
{¶12} Evid.R. 103(A)(1) provides that “[e]rror may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right * * * is affected;
and * * * a timely objection * * * appears of record, stating the specific ground of
objection, if the specific ground was not apparent from the context[.]” (Emphasis
added.) Upon review, the record reveals that the context surrounding Mr.
O’Connell’s objection sufficed to supply the specific grounds for the objection—
everyone understood that the state sought admission under this rule and that the
defense objected. Compare State v. Collins, 9th Dist. Summit No. 22333, 2005-
Ohio-2812, ¶ 14 (“While Appellant did not specifically cite Evid.R. 702(C) in his
objection to [the witness’s] testimony, the specific ground was apparent from the
context of the testimony.”) with State v. Smith, 2d Dist. Montgomery No. 21049,
2006-Ohio-4163, ¶ 43 (defendant’s one-word objection insufficient to preserve error
where “the specific ground would not have been apparent to the trial court from the
context.”). Underscoring the point, defense counsel stressed the temporal
remoteness of K.L.’s allegations, arguing that the staleness of the two-decades old
accusations factored into the admissibility calculus of Evid.R. 404(B). See State v.
Miller, 2015-Ohio-519, 27 N.E.3d 564, ¶ 31 (8th Dist.), citing State v. Jones, 135 Ohio
St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 191 (noting that temporal remoteness
of 30-year-old threat and distinctness from the present circumstances “renders the
other-acts evidence non-probative in this matter.”); State v. Moore, 2012-Ohio-1958,
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OHIO FIRST DISTRICT COURT OF APPEALS
970 N.E.2d 1098, ¶ 88 (8th Dist.), citing State v. Burson, 38 Ohio St. 2d 157, 159, 311
N.E.2d 526 (1974) (“[T]he prior act must not be too remote and must be closely
related in time and nature to the offense charged.”).
{¶13} Nor need we speculate on this point. Before admitting K.L.’s
testimony, the parties debated its admission and its propriety under Evid.R. 404(B).
After Mr. O’Connell’s counsel voiced concerns over the evidence, the trial court
recited the language of Evid.R. 404(B) verbatim. Later, when it ultimately admitted
the evidence, the trial court concluded, “I think it’s clearly 404(B),” to which defense
counsel inquired “[s]o our objection is preserved for the record[?]” The court
agreed: “Yes, yeah.” The context surrounding the evidence’s admission sufficiently
indicated the grounds for the objection, obviating the need for defense counsel to
explore these points further simply for preservation’s sake.
B.
{¶14} Finding that Mr. O’Connell properly preserved his challenge, we turn
to the merits of the evidentiary question, which we review for an abuse of discretion.
See State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. A
trial court abuses its discretion when it acts unreasonably, arbitrarily, or
unconscionably in determining the evidentiary issue at hand. See State v.
Hornschemeier, 2012-Ohio-2860, 973 N.E.2d 779, ¶ 34 (1st Dist.), quoting State v.
Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.
{¶15} Evidence of an individual’s “other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith.” Evid.R. 404(B). The introduction of such evidence is limited in its
admissible scope out of concern that an accused may be convicted simply because he
or she is a bad person with a tendency to commit such acts, and also due to the risk
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OHIO FIRST DISTRICT COURT OF APPEALS
of tainting the jury’s perspective. See State v. Sellers, 1st Dist. Hamilton No. C-
140655, 2015-Ohio-4843, ¶ 13.
{¶16} Under certain circumstances, however, such evidence may be
admissible for specific limited purposes, such as to demonstrate “proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” Evid.R. 404(B); see R.C. 2945.59. But “[o]ther acts evidence is admissible
only when it ‘tends to show’ one of the material elements in the charged offense and
only when it is relevant to the proof of the accused’s guilt for such offense.” State v.
Cleaves, 6th Dist. Wood No. WD-18-032, 2020-Ohio-133, ¶ 26, quoting State v.
Curry, 43 Ohio St. 2d 66, 68-69, 330 N.E.2d 720 (1975). And such exceptions must
be construed against admissibility, as our Supreme Court reminds us: “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, 282, 533 N.E.2d 682 (1988); Sellers at ¶ 14 (“These
exceptions are to be construed against admissibility, and the standard for
determining admissibility is strict.”).
{¶17} Mindful of that interpretive lens, in State v. Williams, 134 Ohio St. 3d
521, 2012-Ohio-5695, 983 N.E.2d 1278, the Ohio Supreme Court set forth a three-
part analysis for consideration of admissibility of other-acts evidence:
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. The next step is to consider whether evidence of
the other crimes, wrongs, or acts is presented to prove the character of
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OHIO FIRST DISTRICT COURT OF APPEALS
the accused in order to show activity in conformity therewith or whether
the other acts evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B). The third step 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.
Id. at ¶ 20.
{¶18} Turning to the present case, in its notice of intention to use the “other
acts” evidence, the state cited “scheme, plan, and system” and “intent, plan, and
motive.” On appeal, the state contends that “K.L.’s testimony exposed the plan used
by [Mr.] O’Connell in perpetrating the offenses,” demonstrating that he “would use
the opportunity of being alone with a young female relative while in a position of
power * * * to have sexual contact,” and that this evidenced his “scheme” to exploit
such victims. The state appears to use interchangeably “scheme,” “system,” and
“plan” in its argument, but the thrust of the state’s position appears to be couched in
terms of demonstrating a “plan” of abuse. Pressed to clarify this point, the state at
oral argument embraced the “plan” exception as its pathway to admissibility for this
evidence.
{¶19} To establish a “plan,” the state seizes on the commonality of these
offenses, portraying the victims as “young family members over whom [Mr.]
O’Connell used his position of authority for his own sexual interests,” which justifies,
in the state’s eyes, the trial court’s conclusion of “similar[ity]” of the acts. But our
perusal of the trial testimony reveals nothing in the way of a plan for purposes of
admissibility under Evid.R. 404(B). To demonstrate furtherance of a “plan,” other
acts must typically “ ‘form part of the immediate background of the crime charged, *
* * where the * * * evidence plays an integral part in explaining the sequence of
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OHIO FIRST DISTRICT COURT OF APPEALS
events and is necessary to give a complete picture of the alleged crime.’ ” State v.
Wilkins, 135 Ohio App. 3d 26, 32, 732 N.E.2d 1021 (9th Dist.1999), quoting State v.
Thompson, 66 Ohio St. 2d 496, 498, 422 N.E.2d 855 (1981) (finding testimony from
victim of rape committed by defendant 12 years prior inadmissible to demonstrate
common scheme, plan, or system). Commission of similar offenses does not render
such acts all part of the same “plan,” particularly when the acts are separated by
years, or in this case, decades. And on this point, the state offers nothing beyond
evidence of the crimes themselves, which courts uniformly deem insufficient to
establish a “plan” for Evid.R. 404(B) admissibility purposes. See In re C.T., 2013-
Ohio-2458, 991 N.E.2d 1171, ¶ 33 (8th Dist.) (allegations of engaging in certain
sexual acts with a prior victim was “conduct that goes to an element of the rape
offense itself, not a ‘scheme,’ ‘plan,’ or ‘method.’ ”); State v. McClellan, 5th Dist.
Stark No. 2017CA00193, 2018-Ohio-3355, ¶ 48 (other acts did not constitute
evidence of grooming of victims but “rather of independent criminal sexual acts on
the victim which are qualitatively the same as the charged offense[.]”).
{¶20} This is not a case where the offenses reveal a particular modus
operandi or some other link between them. Indeed, while they all constitute types of
sexual abuse, the details certainly differ. For instance, K.L. testified that the abuse
occurred when she was approximately eight years old, as Mr. O’Connell (then 14)
babysat her. She recounts that he forced her to touch his penis, and that he
committed an incident of digital vaginal penetration when he thought she was asleep.
T.P., for her part, testified that Mr. O’Connell inappropriately touched her as he
dried her off after a bath when she was three years old. With respect to K.O., she
testified to various instances of abuse, including multiple incidents of rape when she
was approximately six or seven years old. K.O. explained that these incidents
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OHIO FIRST DISTRICT COURT OF APPEALS
occurred as she slept in the family’s shared bed during visits with Mr. O’Connell.
Surveying the facts surrounding the alleged abuse, we fail to see how they
“constituted a unique behavioral footprint” to evidence a plan. See In re C.T. at ¶ 33;
State v. Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, ¶ 32 (no
evidence of preparation or plan where “[t]here were * * * differences between the
frequency and type of the sexual assaults.”).
{¶21} Nor do we see evidence of grooming from which a “plan” might be
inferred. In Williams, the court found that the other acts evidence properly
demonstrated “motive, preparation, and plan” of the accused because the prior act
indicated that the accused “groomed” his victims to prepare them for sexual activity.
Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 22. The
defendant in that case befriended and mentored his victims, bought them gifts and
paid them to do odd jobs at his home, which constituted evidence of the defendant’s
plan, motive, and preparation. Id. at ¶ 3, 22; State v. Kaaz, 12th Dist. Clinton No.
CA2016-05-010, 2017-Ohio-5669, ¶ 44-45 (evidence demonstrated defendant’s
“intent, motive, preparation, and plan” who took “specific and repeated actions to
groom and normalize sexual behavior, including showing [the victims] nude
pictures, discussing genitalia, instructing them on sexual positions and gratification,
as well as intimate touching and kissing.”). Similar reasoning animated our decision
in State v. Smith, 1st Dist. Hamilton No. C-170335, 2018-Ohio-4615, appeal
accepted, 155 Ohio St. 3d 1404, 2019-Ohio-943, 119 N.E.3d 432, in which the other
acts evidence (despite temporal remoteness) tended to show evidence of grooming
because the defendant showed each victim pornography and rubbed them with oil
prior to the abuse. Id. at ¶ 11 (other acts evidence relevant to demonstrate motive
and lack of accident).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} In contrast, the state presented no evidence that Mr. O’Connell
“groomed” any of the victims, much less in the same manner. This case thus tracks
more closely with State v. Hernandez, where the court rejected the state’s contention
that a victim’s 20-plus-year-old abuse allegations demonstrated plan (or motive and
preparation) absent evidence of grooming and when differences existed between the
abusive encounters. The court explained that, though a familial relationship existed
between the defendant and victims, there was no indication that he groomed the
children prior to abuse and “[t]here were also differences between the frequency and
type of the sexual assaults.” Hernandez at ¶ 32.
{¶23} Nor does “us[ing] the opportunity to be alone with a young female
relative” (as the state contends in its appellate brief) support evidence of a plan. See
In re C.T., 2013-Ohio-2458, 991 N.E.2d 1171, at ¶ 33 (“Finding an opportunity to be
alone with another is a necessary part of engaging in sexual conduct[.]”). That is
often just a necessary prerequisite of opportunity to commit the offense.
{¶24} On this record, if we accepted the state’s argument, we would render
Evid.R. 404(B) a hollow letter, as it would throw open the gates for any prior bad
acts so long as they bore some similarity to the charged offenses and pave the way for
the very propensity inference that it was designed to counteract.
{¶25} Finally, even if we broaden the aperture a bit, we also fail to see how
the evidence could be admissible to demonstrate the two other grounds in the state’s
notice of intent, i.e., Mr. O’Connell’s motive or intent. Here, Mr. O’Connell’s intent
was irrelevant given the age of the victims. See State v. Decker, 88 Ohio App. 3d 544,
548, 624 N.E.2d 350 (1st Dist.1993), quoting R.C. 2945.59 (“[The defendant] denied
his involvement in these acts completely. Therefore, [the defendant’s] ‘motive or
intent * * * or [his] scheme, plan, or system in doing an act’ was not material.”);
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OHIO FIRST DISTRICT COURT OF APPEALS
Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, at ¶ 29 (noting
inherent intent to obtain sexual gratification from rape and gross sexual imposition
of a child under 13 because consent not at issue). And other acts demonstrating
motive must be “ ‘ “of a character so related to the offense for which the defendant is
on trial that they have a logical connection therewith and may reasonably disclose a
motive or purpose for the commission of such offense.” ’ ” State v. Blankenburg, 197
Ohio App. 3d 201, 2012-Ohio-1289, 966 N.E.2d 958, ¶ 83 (12th Dist.), quoting State
v. Craycraft, 12th Dist. Clermont Nos. CA2009-02-013 and CA2009-02-014, 2010-
Ohio-596, ¶ 27, rev’d on other grounds, 128 Ohio St. 3d 337, 2010-Ohio-6332, 944
N.E.2d 220, quoting State v. Moore, 149 Ohio St. 266, 78 N.E.2d 365 (1948),
paragraph one of the syllabus. As already discussed, the other acts here, the alleged
decades-old abuse of K.L., are not “of a character so related to the offense” as to have
a logical connection to disclose Mr. O’Connell’s purpose in committing the charged
acts. Thus, we do not see where K.L.’s testimony “tended to show” any permissible
Evid.R. 404(B) exception. See Williams, 134 Ohio St. 3d 521, 2012-Ohio-5695, 983
N.E.2d 1278, at ¶ 22.
{¶26} This discussion largely resolves the first two Williams considerations
because the evidence did not further any legitimate Evid.R. 404(B) purpose, and
without that, we fail to see how it even satisfies basic relevancy concerns. Lest any
doubt remain about how the state used the evidence at trial, the state laid that to rest
in closing, all but conceding the propensity nature of this evidence:
I ask you to first of all consider this; the likelihood that not one,
not two, but three people are bringing allegations against the
defendant, involving the same thing[.] * * * And if you think
about * * * [K.L.] * * * she’s not a victim in this indictment, I
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OHIO FIRST DISTRICT COURT OF APPEALS
brought her in simply so that you could just have more
information that shows that these girls couldn’t be making this
up[.]
This is precisely the type of use of other acts evidence that Evid.R. 404(B) prohibits,
i.e., inviting an impermissible inference that because Mr. O’Connell may have
perpetrated a sexual offense against another female family member in the past, he
therefore is guilty in the current case. See State v. Patterson, 5th Dist. Stark No.
2017CA00022, 2017-Ohio-8970, ¶ 31 (“[W]e find the admission of the evidence
invited the jury to infer a lack of consent through the fact Appellant admittedly had
engaged in sexual conduct without consent in the 2007 case.”); Hernandez at ¶ 35
(“[N]oting the 25 year difference between when the abuse * * * allegedly occurred, we
find no legitimate purpose for which the evidence was admitted * * * other than to
show [the defendant] acted in conformity with his alleged past behavior.”); R.C.
2945.59.
{¶27} Moreover, the trial court omitted any limiting instruction informing
the jury that this evidence was “not being offered to prove [the defendant’s]
character,” which can help mitigate the risk of unfair prejudice. See Williams at ¶ 23
(emphasizing significance of limiting instruction). And K.L.’s testimony, regarding
alleged acts that occurred over 20 years ago, lacks temporal proximity to the present
charged offenses. See Hernandez at ¶ 35 (noting 25-year span between other acts
evidence and charged offenses); State v. Tackett, 11th Dist. Ashtabula No. 2018-A-
0052, 2019-Ohio-5188, ¶ 54, quoting Burson, 38 Ohio St. 2d at 159, 311 N.E.2d 526
(other acts evidence must have a “ ‘temporal, modal and situational relationship’ ” to
the charged offense). Thus, we conclude that K.L.’s testimony was offered for no
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OHIO FIRST DISTRICT COURT OF APPEALS
legitimate purpose, but only to show that Mr. O’Connell acted in conformity with
past behavior to commit the charged offenses.
{¶28} And as to Williams’s third prong, the probative value of the evidence
here is substantially outweighed by the danger of unfair prejudice. See Williams, 134
Ohio St. 3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 24; Evid.R. 403. Again, we
note that no jury instruction was administered to limit the scope of the jury’s
consideration of this evidence. See Williams at ¶ 24. Moreover, even with a limiting
instruction, it may still prove insufficient to overcome the prejudice, especially in the
context of sexual assault and child molestation because “ ‘evidence of these past acts
poses a higher risk, on the whole, of influencing the jury to punish the defendant for
the similar act rather than the charged act.’ ” Hernandez at ¶ 37, quoting State v.
Miley, 5th Dist. Richland Nos. 2005-CA-67 and 2006-CA-14, 2006-Ohio-4670, ¶ 59.
{¶29} The other acts evidence here involved alleged prior sexual abuse by
Mr. O’Connell on a young female family member during a case in which he faced
allegations of sexual abuse from his two, young daughters, rendering the prejudicial
impact fairly self-evident. See Hernandez at ¶ 38; State v. Hart, 2018-Ohio-3272,
118 N.E.3d 454, ¶ 40 (8th Dist.) (prejudice of other acts substantially outweighed the
probative value despite limiting instruction, where acts where “strikingly similar” but
similarities could be viewed simply as propensity evidence). As K.L.’s testimony
assumed little relevance other than to demonstrate that Mr. O’Connell acted in
conformity with an “alleged pattern of having committed prior acts of sexual abuse,”
its prejudicial effect substantially outweighed any probative value. See Hernandez at
¶ 36. That is particularly so since K.L. was an adult at the time she testified, and thus
lent an adult’s perspective (and credibility) to the accusations. Jurors often face a
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OHIO FIRST DISTRICT COURT OF APPEALS
difficult time in assessing credibility of child witnesses, and thus an adult’s
confirmation can set their minds at ease.
{¶30} Here the trial court deemed the other acts the “same” and “similar” to
the charged acts, but that short-circuits the analysis under Evid.R. 404(B) and would
risk reversing the strict presumption against admissibility for this caliber of
evidence. See State v. Green, 90 Ohio St. 3d 352, 369, 738 N.E.2d 1208 (2000),
quoting Broom, 40 Ohio St. 3d 277, 533 N.E.2d 682, at paragraph one of the syllabus
(“ ‘[T]he standard for determining admissibility of such evidence is strict.’ ”); Broom
at 282 (“Neither the rule nor the statute contains the words ‘like’ or ‘similar.’ ”);
Burson, 38 Ohio St. 2d at 158, 311 N.E.2d 526 (addressing other acts under R.C.
2549.59: “Such evidence is admissible, not because it shows that the defendant is
crime prone, or even that he has committed an offense similar to the one in question,
but in spite of such facts.”). “The admissibility of other-acts evidence is carefully
limited, particularly in prosecutions for sexual offenses.” Decker, 88 Ohio App. 3d at
548, 624 N.E.2d 350; State v. Robinson, 6th Dist. Lucas No. L-09-1001, 2010-Ohio-
4713, ¶ 25 (same). Discerning no appropriate, permissible evidentiary use for K.L.’s
testimony in the present case, we conclude that the trial court abused its discretion
and erred in its admission.
III.
{¶31} Having found the admission of K.L.’s testimony erroneous, we must
now review for harmless error to determine if reversal is warranted. See State v.
Geary, 2016-Ohio-7001, 72 N.E.3d 153, ¶ 11 (1st Dist.); Crim.R. 52(A) (“Any error,
defect, irregularity, or variance which does not affect substantial rights shall be
disregarded.”). Harmless error review requires: (1) that the defendant be prejudiced
by the improper admission of the evidence, (2) that the appellate court believe the
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OHIO FIRST DISTRICT COURT OF APPEALS
error was not harmless beyond a reasonable doubt, and (3) upon excising the
improper evidence, a determination whether the remaining evidence
overwhelmingly supports the defendant’s guilt. See State v. Morris, 141 Ohio St. 3d
399, 2017-Ohio-5052, 24 N.E.3d 1153, ¶ 27-29.
{¶32} At trial, Mr. O’Connell testified in his own defense, expressly denying
that the abuse of T.P. and K.O. occurred. In closing, the state capitalized on the
corroborative effect of K.L.’s testimony to bolster the testimony of T.P. and K.O. and
rebut Mr. O’Connell’s assertions. The corroborative weight of an independent adult
witness’s testimony cannot be ignored, especially as K.O. had previously recanted her
allegations against Mr. O’Connell and nearly 10 years elapsed since T.P. initially
alleged her abuse in 2008 when she was three years old. The trial court referred to
K.L.’s testimony as “riveting,” and the prosecution implored the jury to remember
K.L.’s testimony “when * * * trying to determine the credibility of [K.O.] and [T.P.]
and trying to decide whether or not the [s]tate has proved its case beyond a
reasonable doubt.”
{¶33} Based on the foregoing, “there is a reasonable possibility that [K.L.’s]
testimony contributed to [Mr. O’Connell’s] convictions.” See State v. Harris, 142
Ohio St. 3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 39; Hart, 2018-Ohio-3272, 118
N.E.3d 454, at ¶ 42 (“[T]he jury’s determination was necessarily based on the
victim’s credibility vis-a-vis the defendant’s version of the facts. In a ‘he said/she
said’ case, where credibility is paramount, we cannot say that the erroneous
admission of other acts evidence was harmless.”). Therefore, we find that Mr.
O’Connell suffered prejudice by the erroneous admission of K.L.’s testimony and that
the error was not harmless beyond a reasonable doubt.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶34} And surveying the remaining evidence, we do not see that
“overwhelming evidence of guilt” exists given the credibility battle at hand.
Patterson, 5th Dist. Stark No. 2017CA00022, 2017-Ohio-8970, at ¶ 38; see State v.
Thomas, 152 Ohio St. 3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 40, quoting State v.
Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 158 (in excising this
testimony and surveying the strength of the remaining evidence, we note that the
error may be harmless “ ‘if there is substantial other evidence to support the guilty
verdict.’ ”). Like many sexual assault cases, this case involved no physical evidence of
the abuse. Therefore, the state’s case “hinged on the jury’s determination of whose
testimony was more credible”—Mr. O’Connell’s or the victims’. See Harris at ¶ 43.
And generally, reduction of evidence to credibility battles between witnesses falls
short of overwhelming evidence of guilt for purposes of harmless error review. See
Patterson at ¶ 38 (“In the instant case, there was not overwhelming evidence of guilt.
The case turned solely on a determination of credibility[.]”); State v. Cobia, 1st Dist.
Hamilton No. C-140058, 2015-Ohio-331, ¶ 22 (noting that entire case against the
defendant rested on the victim’s testimony and credibility, and that absent the
improper other acts evidence the evidence of guilt was not strong); State v. Hall, 1st
Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶ 25 (excising
improper evidence reduced the state’s case to a credibility battle between witnesses).
{¶35} For these reasons, we conclude that the erroneous admission of K.L.’s
testimony cannot be brushed aside as “harmless error,” thus entitling Mr. O’Connell
to reversal and a new trial free from this prejudicial error.
IV.
{¶36} Based on our disposition of Mr. O’Connell’s first assignment of error,
this renders most of his remaining assignments of error moot. Because of double-
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OHIO FIRST DISTRICT COURT OF APPEALS
jeopardy concerns, however, we must still address his sufficiency of the evidence
argument presented by his fourth assignment of error. See State v. Ramirez, Slip
Opinion No. 2020-Ohio-602, ¶ 11, quoting Burks v. United States, 437 U.S. 1, 11, 98
S. Ct. 2141, 57 L. Ed. 2d 1 (1978) (“In assessing whether a criminal defendant can be
retried, a guiding principle is that ‘[t]he Double Jeopardy Clause forbids a second
trial for the purpose of affording the prosecution another opportunity to supply
evidence which it failed to muster in the first proceeding.’ ”); State v. Frederick, 9th
Dist. Wayne No. 18AP0005, 2020-Ohio-714, ¶ 19 (“While our resolution of [the
defendant’s] first assignment of error mandates reversal, we are compelled to
address his sufficiency challenges due to the constitutional protection against double
jeopardy.”). Sufficiency of the evidence review requires us to construe all reasonable
inferences in favor of the state, and determine whether any reasonable trier of fact
could find that the state presented evidence to prove each of the essential elements of
the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio St. 3d 259, 574
N.E.2d 492 (1991), paragraph two of the syllabus.
{¶37} Mr. O’Connell insists that the lack of physical evidence of the abuse
translates into insufficient evidence to sustain his conviction. We are not persuaded,
however, as the state need not present corroborating physical evidence to meet its
burden of proof. See State v. Jeffries, 2018-Ohio-2160, 112 N.E.3d 417, ¶ 72 (1st
Dist.) (state not required to present corroborating physical evidence in rape cases);
State v. Lukacs, 188 Ohio App. 3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 58 (1st
Dist.) (“[N]o rule of law exists that a witness’s testimony must be corroborated by
physical evidence.”); State v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-
5502, ¶ 67 (record contained more than sufficient evidence in the form of witness
testimony to sustain the charges against the defendant).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶38} Contrary to Mr. O’Connell’s assertion, T.P.’s and K.O.’s testimony
alone, if believed, sufficed to maintain convictions independent of any physical
corroboration. Here, our review of the record convinces us that the state met its
burden regarding the sufficiency of the evidence. We accordingly overrule Mr.
O’Connell’s fourth assignment of error insofar as it relates to the sufficiency of the
evidence.
V.
{¶39} In conclusion, we sustain Mr. O’Connell’s first assignment of error,
overrule his fourth assignment of error as it relates to the sufficiency of the evidence,
and we decline to address his remaining assignments of error as they are moot. See
App.R.12(A)(1)(c). We accordingly reverse the trial court’s judgments and remand
this matter for a new trial consistent with this opinion.
Judgments reversed and cause remanded.
MOCK, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry this date.
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