Merit Decision. Proper Use of “Other Acts” Evidence in Sex Offenses. State v. Williams.

On December 6, 2012, the Supreme Court handed down a merit decision in State v. Williams,  2012-Ohio-5695. In a 6-1 decision written by Justice O’Donnell, in which Justice Lanzinger concurred in judgment only and Justice Pfeifer dissented, the Court held that the use of other acts evidence was proper in this multi-count sex offense case involving a minor.  The case was argued September 25, 2012.  Read the oral argument preview here and the analysis here.

Case Background

Van Williams was charged with multiple counts of rape, unlawful sexual conduct with a minor, kidnapping, gross sexual imposition, and witness intimidation, all stemming from his involvement with then-fourteen year old J.H.

Before empaneling the jury, the state moved to admit evidence that Williams had had a similar sexual relationship at an earlier time with then-sixteen year old A.B. The purpose of this evidence, according to the state, was to show a course of conduct constituting a common plan, modus operandi, and Williams’ intent to achieve sexual gratification with teenaged boys. The defense objected to this evidence.  The trial court deferred its ruling.

At trial, over the defendant’s objection, the court allowed A.B. to testify about the earlier acts. But the court also gave a cautionary limiting instruction that the evidence could not be used to show the defendant’s character in order to show that he acted in conformity with that character.  The trial court also permitted the testimony, over the defense objection, of a social worker who testified that Williams had admitted to her a third, earlier sex abuse matter that had been reduced to a misdemeanor offense. He also told the social worker that he was attracted to women, not to men.

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, and sentenced to twenty years in prison. Williams appealed.

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. Identity was not at issue in this case, and the backgrounds of the alleged offenses were factually separate. The appeals court also held that the prejudicial effect of the evidence outweighed any probative value. The Supreme Court accepted the state’s appeal in this case.

Positions of the Parties at the Supreme Court

The state argued that there were two proper independent bases to admit the other acts testimony—intent and plan. Williams argued that the other acts testimony was only admissible to prove identity or the immediate background of the charged offense, and was thus properly excluded.

Useful Information in Understanding this Decision

R.C. 2945.59- Proof of Defendant’s Motive

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.

Effective Date: 10-01-1953

State v. Curry, 43 Ohio St.2d 66 (1975)

Syllabus

Evidence of other acts of a criminal defendant is admissible, pursuant to R.C. 2945.59, (enacted well before Evid. Rule 404) 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.

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.

The Interplay Among the Statute, Curry and Evid. R. 404(B)

Issue in this Case

Did the Court’s holding in State v. Curry, that R.C. 2945.59 allowed other acts testimony to show identity or the immediate background of other acts that form the foundation of the crime charged, also preclude other acts testimony pursuant to Evid. R. 404(B)?

Short answer: Curry did not limit the admissibility of other acts testimony just to those two circumstances, and since it predated the evidence rule, it did not even apply or consider that rule.

Difference Between the Statute and the Rule

The statute contains a limiting materiality requirement not found in the rule.  Thus the rule gives the court broader discretion in the admission of other acts evidence.

A New Tweak on Curry

The court of appeals interpreted Curry as limiting other acts evidence  to two situations—to show the background of the alleged crime or to show identity, if at issue. But the high court holds here that it never limited  admissibility just to those two situations, and that Curry predated the rules, so never considered or applied Evid. R. 404(B).

Other Acts Evidence that is Clearly Inadmissible

Evidence that an accused committed other crimes is not admissible when its sole purpose is to show his bad character and that he acted in conformity therewith. This evidence is banned under both the statute and the evidence rule. Nothing in this opinion changes any of this.

Other Acts Evidence that is Admissible

Those listed in the rule– proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

The Newly-Required Three Step Analysis to Determine Admissibility

  1. Is this evidence relevant to making any consequential fact more or less probable?
  2. Is the evidence offered for a permissible or impermissible purpose?
  3. Is the probative value of the evidence substantially outweighed by its prejudicial value? (Implicating Evid. R. 403)

Application of the Three-Step Analysis to this Case

  1. The evidence made both motive and plan more probable, and also rebutted the defense suggestion that J.H. had falsely accused Williams to get out of trouble at school and that Williams was attracted to women (both Chief Justice O’Connor and Justice McGee Brown mentioned use for this purpose at oral argument.)
  2. The state did not offer the evidence to show that Williams was acting in conformity with his character.  The trial court gave two limiting instructions that the evidence was expressly not being offered for this purpose. This point was very important to Justice Lanzinger at oral argument.
  3. The limiting instruction lessened any prejudicial effect of A.B.’s testimony, and corroborated J.H.’s testimony, which Williams had denied.

End Result

The judgment of the court of appeals was reversed and the trial court judgment reinstated.

Justice Pfeifer’s Dissent

Justice Pfeifer believed that the other acts testimony was offered for the express purpose of proving Williams’ bad character to show that his conduct in regard to J.H. was in conformity therewith, which is improper.

He also chided the majority for not doing a thorough analysis in step three—whether the other-acts testimony prejudiced Williams, clearly believing that it did.  He sees a clear violation of Evid. R. 404(B) in this case. This is consistent with his position at oral argument, where he expressed apparent disgust at why the state needed to use any other acts testimony at all in this case, given the other overwhelming evidence.

Case Syllabus

Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission of evidence of other crimes, wrongs, or acts offered to prove the character of an accused in order to show that the accused acted in conformity therewith, but it does not preclude admission of that evidence for other purposes.

Concluding Observations

Here’s what I wrote after argument:

“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.”

As student contributor Greg Kendall noted after argument, the justices were all over as to what the prior acts evidence actually showed or could have shown in this case. For Justice O’Donnell it was common plan or scheme.  For Chief Justice O’Connor it was plan, scheme, or preparation, as well as to rebut Williams’ assertion that he was attracted to women. For Justice McGee it was plan, purpose or design. For Justice Lanzinger it was evidence of intent.

From my experience on the bench, the prosecution often drives a truck through the general rule, which is to keep other acts testimony out, but in this case, I think some of the exceptions did arguably apply.

One surprise is that Justice Lanzinger only concurred in judgment. She made much of the importance of the limiting instruction at argument, and Justice O’Donnell went out of his way to emphasize that in the majority opinion rationale, so I’m surprised that she stopped short.

 

 

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