Update: On December 6, 2012, the Supreme Court of Ohio handed down a merit decision in this case. Read the analysis here.
On September 25, 2012 the Supreme Court of Ohio heard oral argument in the case of State v. Williams, 2011-2094. At issue in this case is the use of other acts testimony under Evid. R. 404(B) in a sex crimes case.
Van Williams was convicted of 5 counts of Rape, 5 counts of Unlawful Sexual Conduct with a Minor, 7 counts of Kidnapping, and 6 counts of Gross Sexual Imposition of a 14-15 year old boy, J.H. At trial, the court allowed the state to introduce evidence that Williams had sexually abused another teen-aged boy, A.B., twelve years earlier. The trial court found (1) the evidence showed that Williams’ intent in the J.H. case was sexual gratification, (2) the state had the right to rebut defense testimony that Williams was not attracted to males, (3) the evidence of sexual conduct with A.B. showed Williams’ motive in committing the acts against J.H., and (4) the probative value outweighed prejudice to Williams.
The Eighth District Court of Appeals sitting en banc reversed, finding that under State v. Curry, 43 Ohio St.2d 66 (1975), prior acts evidence can only be used to show a defendant’s scheme or plan in two situations—to show the background of the alleged crime or to show identity. The appeals court also held that the prejudicial effect of the evidence outweighed any probative value. The Court accepted the state’s appeal in this case. Read the oral argument preview here.
Evid.R. 404(B) Other Crimes, Wrongs, or Acts
Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person 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.
Syllabus, State v. Curry
Evidence of other acts of a criminal defendant is admissible, pursuant to R.C. 2945.59, (ed. note-predecessor to Evid. R. 404 (B)) only if one or more of the matters enumerated in the statute is a material issue at trial and only if such evidence tends to show the material enumerated matter.
At the Oral Argument
The prosecutor argued that the state needed other acts evidence to prove some of the elements of the charged offenses, particularly intent. The appeals court used factually false evidence outside the record to find that evidence of prior sexual acts with A.B. did not go to intent and was consensual, and therefor different from the relationship with J.H. Those two bases for finding no relevant purpose for the use of this evidence was completely wrong. The state properly offered this evidence to show a common scheme or plan and to establish intent. This was proper because in his opening statement, the defense counsel denied that Williams was attracted to males and claimed J.H. had fabricated the entire story.
The Attorney General’s office filed an amicus brief in support of the prosecution, and shared oral argument time. The assistant A.G. argued that the limitations placed on other acts testimony by the Court in Curry are no longer valid in light of Evid. R. 404(B). The AG’s office asked the Court to clarify that Curry no longer limits the admissibility of plan evidence in Ohio.
Defense counsel argued that the disputed evidence in this case was propensity evidence, pure and simple, and the appeals court properly found the trial court abused its discretion in allowing its admission. The appeals court was also correct in finding the evidence was far more prejudicial than probative. There was absolutely no nexus between what had happened twelve years earlier and the present plan. The only inference that could have been drawn from this evidence was the impermissible one that it happened once so it could happen again. Both the prior statute and the rule have the same purpose, which is to bar propensity evidence, and set forth ways other acts evidence can be properly admitted. And Curry is a sensible way to limit other acts testimony.
What was on Their Minds at the Argument
Wasn’t the Evidence Admitted for Permissible Reasons in this Case, and not just as Propensity Evidence?
Justice O’Donnell asked if it was to show a common scheme or plan. Could there be a common scheme or plan between two incidents 12 years apart?
Didn’t the evidence show plan, scheme, or preparation, asked Chief Justice O’Connor? (not according to the defense). Was a 12 year gap just too long? Wasn’t there clearly a link between the two sets of behaviors?
What about evidence of intent, asked Justice Lanzinger, which is different from plan or scheme. Wasn’t this probative evidence of intent the jury would need to find in this case?
Isn’t this very compelling evidence in a case in which the defendant denied having done any of this, asked Justice Pfeifer.
Justice McGee Brown noted that if the Court were to accept the defense view of other acts testimony, in any he said versus he (or she) said case without physical evidence, would 404(B) just become meaningless? Under the defense theory, she commented, in the context of someone taking advantage of his or her position in sexually abusing children, the ability to show the person had a plan, purpose or design for taking advantage of that relationship would always be propensity evidence, and never allowed.
But What About Its Prejudicial Effect?
Justice Lanzinger asked, even if the evidence were properly admissible under Evid. R. 404(B), did the prejudicial effect outweigh any probative value?
Aren’t you Just Piling On?
Justice Pfeifer expressed apparent disgust at why the state needed to use any other acts testimony at all in this case, given the other overwhelming evidence.
Consent? You’ve Got to Be Kidding?
Justice Stratton expressed outrage that the court of appeals could characterize the relationship between Williams and then 16 year old AB as “consensual”. I think that finding lost her for good on the rest of the decision.
Didn’t the Defendant Put His Lack of Attraction to Boys at Issue?
Asked Justice McGee Brown. So wasn’t the evidence permissible to refute that defense? Chief Justice O’Connor asked pretty much the same thing.
What was the defense, asked Justice Pfeifer. I never did any of these acts? (yes, says the state).
Has Curry Been Superseded by Evid. R. 404(B)
A number of justices asked this in a number of ways. Justice O’Donnell asked which the state was relying on? (404(B), solely). Justice Lanzinger asked if the Court would have to overrule Curry or would it just be limited because 404(B) superseded it? Has the statute been superseded by the rule?
A Limiting Instruction to the Jury
In a point likely to be crucial, Justice Lanzinger asked if the jury had received a limiting instruction on the use of the other acts testimony. (yes) Did it recite all of 404(B)? (yes, said defense counsel, but the court of appeals properly held that wasn’t enough, because there was no other interpretation of the evidence except that it was propensity evidence.)
How it Looks from the Bleachers
This looks like a reversal. I think the Court is going to do what the Attorney General’s office asked—clarify that Curry no longer limits the admissibility of plan evidence in Ohio just to identity or the background of the crime, and that Evid. R. 404(B) controls.
I think the Court, probably unanimously, will find that in this case the other acts evidence was properly admitted to show either plan, preparation, or intent, and that the probative value was not outweighed by the prejudicial effect. I say probably unanimously, because Justice Pfeifer clearly thought the evidence was unnecessary, and appeared disgusted that the state felt obliged to use it. So he may go his own way, but if he agrees with the majority, is likely to say something about this. I think the Court will also likely find the limiting instruction significant in the case.
Student Contributor Greg Kendall
Justice Pfeifer was unsympathetic to the State, believing that the State did not need to bring in the prior acts evidence to prove the “sexual purpose” element. The justices seem to be in wide disagreement as to what the prior acts evidence actually showed or could have shown in this case. The Court’s decision in this case will probably come down to how it characterizes the evidence—as “propensity” evidence or as evidence of plan or motive. The Court will also have to decide whether Rule 404(B) superseded the statute, or if Curry still informs the analysis here because Rule 404(B) and the statute serve the same purpose.