Update: On September 22, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On January 29, 2020, the Supreme Court of Ohio will hear oral argument in the case of State of Ohio v. Michael Smith, 2018-1831. At issue in the case is whether prior acquittal evidence is admissible in a subsequent criminal case.

Case Background

In early 2016, Michael Smith was accused of sexually molesting his granddaughter.  Based on these allegations, in January 2017 he was indicted and tried for rape, gross sexual imposition, and disseminating matter harmful to a juvenile. The trial resulted in a hung jury and a second trial was ordered.

During the second trial, the State presented evidence that Smith had been previously accused of molestation. Specifically, this evidence revealed that in 1986 Smith was tried and acquitted on charges of sexual battery in connection with an alleged sexual assault on his own daughter. This evidence primarily consisted of testimony from V.M., Smith’s now adult daughter. V.M. testified that Smith had molested her several times in the 1980s. The description of the sexual abuse that Smith allegedly committed in 1986 was similar to the allegations he presently faced in connection with his granddaughter.

At the conclusion of the second trial Smith was acquitted on the rape charge but was convicted on the gross sexual imposition and dissemination charges. Smith appealed his convictions, arguing Hamilton County Common Pleas Court Judge Jody Luebbers had erred in admitting evidence of his conduct resulting in the earlier prosecution for sexual battery.

The Appeal

In a unanimous decision authored by Judge Mock, joined by Judges Miller and Deters, the First District Court of Appeals affirmed the convictions. The First District held that the trial court did not abuse its discretion when it admitted testimony relating to Smith’s 1986 case because the evidence was properly admitted as other acts evidence under Evid.R. 404(B). The First District reasoned that the evidence was properly admitted because it was relevant and was admitted to show motive, intent, and absence of mistake. Furthermore, the First District found that the evidence was admitted with a limiting instruction and that its probative value was not substantially outweighed by its unfair prejudice to Smith.

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices French, Fischer, and Donnelly

No: Justices Kennedy, DeWine, and Stewart

Smith’s First Proposition of Law Accepted for Review

Evidence of prior acts pertaining to criminal charges which resulted in acquittal should be barred from admission in a subsequent criminal case. Accordingly, this Court should reject Dowling and its progeny and impose a per se bar upon the admission of acquittal evidence in any subsequent criminal case.

Smith’s Second Proposition of Law Accepted for Review

The admission of irrelevant, highly prejudicial evidence of a 30-year-old acquittal for which the transcripts and complete record are unattainable contravenes the test articulated by this Court in State v. Williams, 134 Ohio St.3d 521.

Key Statutes and Precedent

Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)

Ohio Constitution, Article I, Section 16 (“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.”)

U.S. Constitution, Amendment XIV (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”)

Ohio Evid.R.404(B) (“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.”)

Ohio Evid.R. 403(A) (“Although relevant, evidence is not admissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.)

Patterson v. State, 96 Ohio St. 90 (1917) (“There is no guaranty, either by Constitution or by statute, that evidence offered upon the trial of the accused for a different offense, of which he was convicted or acquitted, may not be offered to prove a distinct but related offense.”)

Dowling v. United States, 493 U.S. 342 (1990) (The admission of acquittal evidence in a subsequent proceeding does not violate the U.S. Constitution.)

State v. Williams, 76 Ohio St.3d 290 (1996) (When determining whether a party should be collaterally estopped in a criminal case, courts should consider the following: (1) what ultimate facts or issues were decided against the state in a valid and final judgment in the first trial; (2) whether the state is attempting to relitigate those issues or facts in the subsequent trial; and (3)  whether there is mutuality of parties between the two trials.)

State v. Lovejoy, 79 Ohio St.3d 440 (1997) (“Collateral estoppel is the doctrine that recognizes that a determination of facts litigated between two parties in a proceeding is binding on those parties in all future proceedings.”)

State v. Craig, 2006-Ohio-4571 (2006) (Allowing evidence of prior bad acts that had been previously rejected by a grand jury to be admitted in a subsequent criminal prosecution.)

State v. Williams, 2012-Ohio-5695 (Establishing a three part test for the admission other acts evidence: (1) whether the other acts evidence is relevant; (2) whether the other acts evidence is proffered merely to suggest action in conformity therewith or for a legitimate purpose; and (3) whether the probative value of the other acts evidence is substantially outweighed by the danger of unfair prejudice.)

Smith’s Argument

The State violated Smith’s constitutional rights when it introduced testimony relating to the 1986 sexual battery charges on which Smith was acquitted. The admission of evidence of prior bad acts stemming from criminal charges that resulted in acquittal violates the Ohio Constitution’s Double Jeopardy and Due Course of Law clauses. Thus, the Supreme Court of Ohio, which has not yet accepted or rejected Dowling, should join the several states that have rejected Dowling and hold that the use of such acquittal evidence is totally barred from admission in subsequent prosecutions.

Dowling violates the Double Jeopardy clause because allowing acquittal evidence to be used in a subsequent criminal case forces the accused to re-mount a defense to charges on which he has already been acquitted. This is a large burden for the accused who is already faced with defending against the present charges. Additionally, this is especially true when the prior acquittal is decades old and all records and memories have evaporated. Moreover, the Supreme Court of Ohio has already acknowledged that the collateral estoppel component of the Double Jeopardy clause applies to cases of previous acquittal.

Even under a strict collateral estoppel analysis, Smith prevails because the ultimate fact decided in Smith’s 1986 case was that he did not engage in sexual conduct with his daughter. Thus, he was acquitted on the ultimate issue which satisfies the first prong of Ohio’s collateral estoppel analysis. Also, the State presented evidence pertaining to the 1986 case, which satisfies the second collateral estoppel prong. Finally, the parties were the same in the 1986 and 2017 cases, namely the State and Michael Smith.

Additionally, Dowling violates Ohio’s Due Course of Law clause because the use of acquittal evidence is fundamentally unfair. The unfairness a defendant suffers when acquittal evidence is used in a subsequent prosecution is not only the expense of time and money, but also more importantly, the anxiety and embarrassment of having to relitigate accusations on which the defendant was already found innocent. Moreover, it makes no sense to allow evidence of decades old acquittals to be admitted on less stringent standards than admission of criminal convictions.

There are many dangers of using propensity evidence that are especially problematic in child sexual abuse cases. For example, propensity evidence leads juries to convict as punishment for the prior bad acts, rather than the current offense at issue.

Ohio should reject Dowling and ensure greater constitutional protections than those afforded by the U.S. Constitution. Several policy reasons support this outcome. For example, barring the admission of acquittal evidence would ensure enduring significance of acquittals, maintain the finality of verdicts, and reduce the dangers of propensity evidence.

Even if the court does not wish to reject Dowling, in this case the State’s prior bad acts evidence was still inadmissible under Williams because it was irrelevant, proffered merely to show propensity, and its probative value was substantially outweighed by its unfair prejudice. And realistically, limiting instructions in the child-sex-abuse context are insufficient and ineffective in protecting a defendant from unfair prejudice. In this case the limiting instruction was non-specific and overly broad.

State’s Argument

The Ohio and Federal Double Jeopardy and Due Process Clauses are coextensive. Under both sets of clauses it is constitutionally permissible to admit prior bad acts evidence even when it is related to a prior criminal case that resulted in an acquittal. Therefore, the prior bad acts evidence presented in Smith’s trial was properly admitted under the Ohio Constitution, the Federal Constitution, and Evid.R.404(B).

The Supreme Court of Ohio should adopt the U.S. Supreme Court decision in Dowling. Several of Ohio’s appellate courts have already done so. Also, the Supreme Court of Ohio has adopted Dowling in holding that prior bad acts evidence is admissible when it relates to conduct in connection with grand jury no-bills. Therefore, the Court should take the next logical step and hold the admission of prior bad acts evidence related to a prior acquittal is admissible. Second, collateral estoppel only applies if the acquittal actually determined the ultimate fact at issue. Here, Smith’s 1986 acquittal was based on a general verdict which did not specify the reasoning for the acquittal. Thus, it did not actually determine the ultimate issue of fact of whether Smith engaged in sexual conduct with his daughter. For example, the jury may have believed that Smith engaged in sexual conduct with his daughter but acquitted him because it did not believe the State proved proper venue.

Smith was not placed in jeopardy of being convicted of an offense for which he was acquitted.  Rather, his past actions were properly admitted for the purposes permitted under Evid. R. 404(B).

Additionally, Smith’s concerns about the dangers of propensity evidence are unfounded. These dangers would be present in any case and thus Smith is essentially arguing against the use of 404(B) evidence altogether. In any event, limiting instructions are meant to safeguard from these dangers and courts are to presume that juries follow their instructions.

Furthermore, under Williams and Evid.R. 404(B), the trial court properly exercised its discretion in admitting the prior bad acts evidence related to Smith’s prior acquittal. Evid.R. 404(B) permits the admission of evidence of prior bad acts to show absence of mistake or plan. Smith claimed that he did not touch his granddaughter sexually and that if he did touch her inappropriately, it was an accident. Thus, the State introduced evidence of Smith’s 1986 sexual battery case to show that he had been accused of similar conduct in the past, and thus it is unlikely that this conduct a second time was an accident. This is exactly the type of evidence that 404(B) permits. Similarly, the evidence of the 1986 case was also introduced to prove Smith used the same plan to molest his granddaughter that he used when he molested his daughter. Therefore, this evidence of Smith’s prior 1986 acts was used for permissible purposes under Evid.R.404(B).

Finally, this evidence also satisfied Ohio’s three prong test for admission of prior bad acts evidence because it was relevant, used to show permissible purposes as explained above, and its probative value was not substantially outweighed by unfair prejudice.

State’s Proposed  Counter Proposition of Law No. 1:

The admission of other-acts evidence under Evid.R.404(B) is not precluded by a prior acquittal.

State’s Proposed Counter Proposition of Law No. 2:

Nothing in Evid.R. 404(B) requires collateral evidence to support the admission of other-acts evidence.

Amicus in Support of Smith.

The Office of the Ohio Public Defender (OPD) filed an amicus brief in support of Smith. OPD is a state agency that represents criminal defendants and coordinates criminal defense efforts throughout Ohio. OPD’s interest in the case is to protect the integrity and manageability of Ohio’s justice system and ensuring equal treatment under the law. OPD argues Smith’s conviction should be reversed because allowing acquittal evidence to be used against defendants is not compatible with constitutional rights or fundamental fairness.

OPD’s Proposed Proposition of Law No. 1:

Evidence of prior acts pertaining to criminal charges which resulted in acquittal should be barred from admission in a subsequent criminal case. Accordingly, this Court should reject Dowling and its progeny and impose a per se bar upon the admission of acquittal evidence in any subsequent criminal case.

OPD’s Proposed Proposition of Law No. 2:

The admission of irrelevant, highly prejudicial evidence of a 30‐year‐old acquittal for which the transcripts and complete record are unattainable contravenes the test articulated by this Court in Williams.

Amicus in Support of State

The Ohio Attorney General (“OAG”) filed a brief in support of the State. The OAG is Ohio’s chief law enforcement officer and is permitted to appear for the state in the argument of all civil and criminal cases. The OAG is interested in ensuring that Rule 404(B) is properly applied and that the Ohio Constitution is interpreted in a manner consistent with its text and original meaning. The OAG argues Smith’s conviction should be affirmed because Ohio’s Double Jeopardy Clause permits the introduction of other-acts evidence under Rule 404, even in cases where the other acts relate to crimes of which the defendant was acquitted.

OAG’s Proposed Proposition of Law No. 1:

Neither the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution nor Article 1, Section 10 of the Ohio Constitution prohibits the introduction of other-acts evidence relating to charges of which a defendant was earlier acquitted.

OAG’s Proposed Proposition of Law No. 2:

The trial court correctly applied controlling precedent when it admitted evidence that Smith had abused V.M.

Student Contributor: Ivy Charneski