DocketNumber: No. 89803.
Citation Numbers: 2008 Ohio 1828
Judges: ANTHONY O. CALABRESE, JR., P.J.
Filed Date: 4/17/2008
Status: Non-Precedential
Modified Date: 4/18/2021
{¶ 3} At his arraignment on September 1, 2006, appellant pled not guilty to all of the charges. Prior to the commencement of the jury trial on March 19, 2007, the court granted the appellant's motion to dismiss counts 21 through 84, for the reason the statute of limitations had run, and barred the state from prosecuting appellant for *Page 4 the alleged crimes he committed upon his daughter, victim 2. After the court's ruling on appellant's motion, only counts one through 20 remained.
{¶ 4} Prior to the commencement of the jury trial, the court also held a hearing on the state's motion to admit other acts evidence pursuant to Evid.R. 404(B) and R.C.
{¶ 5} On March 22, 2007, the jury returned a verdict of guilty as to counts one through 20. On April 24, 2007, the court sentenced appellant to a life sentence on counts one through 12, rape, in violation of R.C.
{¶ 8} Evidence regarding prior acts of molestation upon other individuals or family members, even if not included in the indictment, has been permitted in *Page 6 numerous Ohio jurisdictions, including this one. In State v. Cornell(Nov. 27, 1991), Cuyahoga App. No. 59365, testimony of other acts was material in establishing defendant's pattern of conduct, specifically his attraction to boys under the age of 16. In State v. Love (June 4, 1997), Hamilton App. No. 960498, evidence of other acts was material in demonstrating defendant's pattern of becoming involved with single mothers with prepubescent daughters so that he had sexual access to the daughters while the mothers were unavailable to protect them. InState v. Wright (June 20, 1985), Franklin App. No. 85 AP-79, testimony of other acts was admissible to show absence of mistake (e.g. accidental touching) where the defendant claimed that the victim merely sat in his lap. In State v. James (Aug. 24, 1995), Hardin App. No. 6-94-18, evidence of the defendant's past sexual activity with his daughter was admissible to help prove the element of force in a subsequent rape trial. See, also, State v. Colvin (Aug. 16, 1989), Hamilton App. No. C-880430 (evidence of other acts of sexual abuse and violence directed toward his stepdaughter and other family members was admissible at trial because it was relevant and material to prove an element of force).
{¶ 9} In cases involving children "coercion is inherent in the parent-child relationship and under these special circumstances force need not be overt and physically brutal, but can be subtle and psychological." State v. Eskridge (1988),
{¶ 10} Evid.R. 404(B) governs the admissibility of "other acts" evidence and reads as follows:
{¶ 11} "(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."
{¶ 12} Evid.R. 404(B) works in conjunction with R.C.
"§
2945.59 . Proof of defendant's motiveIn 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."
{¶ 13} Accordingly, the evidence is admissible under Evid.R. 404(B) and R.C.
{¶ 14} In State v. Russell, Cuyahoga App. 83699,
{¶ 15} Therefore, the evidence in the case at bar is admissible under Evid.R. 404(B) and R.C.
{¶ 16} In addition, evidence of appellant's previous sexual advances toward victim 1 over the years was presented to demonstrate appellant's pattern of engaging in sexual intercourse and molesting his daughter while occupying a position of trust and authority. Finally, evidence of other acts helped to establish an element of the charged crime. Specifically, victim 2's testimony concerning appellant's prior sexual abuse helped to demonstrate that appellant purposely compelled the victim to submit by force or threat of force.
{¶ 17} Accordingly, the trial court did not err by admitting evidence of the prior acts of sexual molestation toward other victims by the appellant.
{¶ 18} Appellant's sole assignment of error is overruled.
It is ordered that appellee recover from appellant the costs herein taxed.
*Page 9The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
CHRISTINE T. McMONAGLE, J., and ANN DYKE, J., CONCUR.