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

“Are we arguing about the facts of this case or are you asking for a complete bar?”

Justice French, to the Assistant Public Defender

“You can disagree, but I am going to have a hard time finding a common scheme that goes back 30 years. I mean this just sounds like propensity evidence.”

Justice DeWine, to the Assistant County Prosecutor

“You think a legal decision about evidence is subject to abuse of discretion?”

Justice DeWine to the Deputy Solicitor

On January 29, 2020, the Supreme Court of Ohio heard 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 that the trial court had erred in admitting evidence of his conduct resulting in the earlier prosecution for sexual battery.

The Appeal

In a unanimous decision, 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.

Read the oral argument preview of the case here.

Key Statutes and Precedent

United States Constitution, Amendment V (“No person shall . . . be subject for the same offense to be twice put in jeopardy of life or limb . . .”)

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.)

U.S. v. Merriweather, 78 F. 3d 1070 (6th Circuit 1996) (Explaining the proper 404(B) framework for federal courts: (1) the proponent of the evidence must identify the specific purpose for which the evidence is offered; (2) the court must then determine whether the identified purpose is material and at issue; (3) the court must then engage in the 403 balancing analysis of the evidence; (4) if the evidence is admitted the court must clearly, simply, and correctly instruct the jury as to the specific purpose for which they may consider the evidence.)

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. Gustafson, 76 Ohio St.3d 425 (1996) (Double Jeopardy Clauses of the Ohio and United States Constitutions are coextensive.)

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 of 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 Propositions of Law Accepted for Review

Proposition One

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.

Proposition Two

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.

At Oral Argument

Arguing Counsel

Krista M. Gieske, Assistant Public Defender, Office of the Hamilton County Public Defender, for Appellant Michael Smith

Scott M. Heenan, Assistant Prosecuting Attorney, Hamilton County, for Appellee State of Ohio

Samuel C. Peterson, Deputy Solicitor General, Office of the Ohio Attorney General, as amicus in support of Appellee State of Ohio

The Attorney General’s Office was granted leave to share oral argument time with the state.

Smith’s Argument

Evidence of a person’s character is not admissible to prove action in conformity therewith. But the way that Ohio trial courts are applying the 404(B) exceptions to this rule is swallowing the rule whole. The cleanest way to fix this an outright bar on evidence when it refers to a prior acquittal. Alternatively, or in addition, this Court should refine the test in State v. Williams to require the following: that the proponent of the evidence identify the specific exceptions for which it seeks to have the evidence admitted; assess the probative value of those proferred exceptions; balance this probative value against the dangers of unfair prejudice, and if still deemed admissible, then the trial court must instruct the jury in a tailored fashion as to those specific purposes.

This case is evidence of how the existing Williams test does not necessarily accomplish what the Williams court set out to do, and presents this Court with the opportunity to revisit and clarify all three prongs of Williams in a manner that will tremendously benefit trial courts, criminal defendants, and especially jurors.

The constitutional issues in this case are only relevant to the first proposition of law which seeks a bright line rule barring the use of evidence related to a prior acquittal. In this regard, Mr. Smith is requesting that the Court afford greater protections under the Ohio Constitution. That is the only proposition where the acquittal is relevant.  But if this Court rejects Smith’s first proposition of law, that makes the second proposition all the more important. This second proposition of law is not mere error correction, as it will apply to every trial court in this state.

The second proposition of law focuses on the Williams test, particularly its prejudice prong, which does bring in some factual considerations. Nowhere does this record show that the trial court did an Evid.R. 403 analysis. Mr. Smith asks this Court to follow what the federal courts already require in this area, which is that the proponent provide the actual specific exceptions and that the trial court, after doing the analysis, then instructs the jury accordingly.The federal practice is cleaner, easier to follow, and focuses the jury’s attention right from the start.

Speaking specifically to the admission of evidence to show absence of mistake or accident in this case, the prior acts would have to be akin to what happened here, and they were not. There were no allegations that in the past Mr. Smith had been rubbing his daughter with oil and then it led to inappropriate touching. There was nothing like that. The prior act was simply not probative of the exception the state sought to use. This falls into the forbidden propensity trap.

As far as the limiting instruction went, it was not meaningfully tailored for the average lay juror. The trial judge told the jury that they were going to hear evidence for a limited purpose, then didn’t explain what that limited purpose was, and then went on to say the evidence could not be used for propensity.  So, the jury got nothing there. Limited purpose means nothing to lay persons. The limiting instruction gave the jury no reason to reference the acquittal evidence in the case.

This was not one of those overwhelming evidence cases we hear about. When this case was first tried, the first jury hung.  The second jury almost hung. They needed the Howard charge to proceed. The second jury still acquitted on two of the charges. The 404(B) evidence was pivotal here. It was highly inflammatory.  And on this record the 403 analysis is completely absent, which means the court of appeals cannot do a meaningful review. That is especially problematic in child sex abuse cases, because the prejudice is already there.

State’s Argument

At no point did Mr. Smith object to the jury instructions that were given in this case, or request that they be clearer or more specific. If he wanted more explicit instructions, then he should have objected to those instructions below, but he did not. So that issue is not properly before the Court.

The state was specific during the 404(B) hearings before trial. The prosecution said it would be offering evidence to show a common scheme and a lack of mistake or accident, and that is what it focused on.  When the defendant raises the defense of accident, that clearly opens the door for 404(B) evidence to come in. And there is clearly 404(B) evidence that would refute the accident claim.

The evidence of common scheme showed that every time Mr. Smith did this, he made sure that someone else was home, he showed porn to the child, and he brought up the victim’s mother. These things are unique to this case, to his behavioral fingerprint. And that is why it is relevant to common scheme.

The verdicts in the case show the jury was able to discern what they felt did and did not happen and were willing to acquit Mr. Smith on things they felt he did not do. The child’s story was consistent each time she told what happened to her. Even if the past is taken away, there is still sufficient evidence to support this conviction.

Should this Court choose to do so,  it can give greater protections here than the federal courts have. Dowling just sets the floor. However, providing greater protections would be awkward, since in 2006, in Craig this Court held that allowing evidence of prior bad acts that had been previously rejected by a grand jury could be admitted in a subsequent criminal prosecution. And the Court would need to reverse its decision in Patterson, a pre-evidence rules case from over a century ago.

If the Court finds the acquittal evidence was properly admitted, then the second proposition of law becomes mere error correction. That asks the Court to do nothing but review the decision from the First District. If the Court does completely change the way 404(B) evidence is looked at, then the appropriate result would be for this case to be sent back to the First District to apply whatever law this Court would give. But the correct result here is to affirm what happened below.

A.G.’s Argument

Mr. Smith’s first proposition of law refers only to the Ohio Constitution and does not raise a U.S. Constitutional claim.  But the Court should not consider that claim because it wasn’t raised in the courts below. While the state believes this claim was forfeited, if the Court does address the Ohio Constitution, it should hold that the Ohio Constitution provides no greater protection, and in fact likely less protection, than the U.S. Constitution. Mr. Smith has conceded that he is only seeking a bright-line rule with respect to the Constitutional provision. Since he is not asking for a bright-line rule with respect to Proposition 2, essentially, Mr. Smith has conceded that he is only seeking error correction today.

Turning to the Ohio Constitution, we look to the language, the history, and the early understanding, and all three point in the same direction. Beginning with the language, the Double Jeopardy Clause of the Ohio Constitution speaks of being twice placed in jeopardy for the same offense, not the same evidence. Yet Mr. Smith’s argument is all about being placed twice in jeopardy for the same evidence. The Ohio Constitution’s Double Jeopardy Clause finds it roots in the common law pleas of autrefois acquit and autrefois convict, and at the common law these pleas did not deal with evidence. And there were no collateral estoppel elements to those common law pleas.

Early on, it was well understood that the Ohio Constitution did not bar the kind of evidence that Mr. Smith is discussing here today.  There has been no discussion from the defense side of the Clause’s history or its language. So, while the Court has heard that it can provide greater protection under the Ohio Constitution, and that it can interpret it differently than its federal counterpart, there has been no discussion of why it should.

With respect to the second proposition of law, while it may have been a close call for the trial court on whether to admit this 404(B) evidence, the abuse of discretion standard for reviewing this evidentiary ruling should make this an easy call for an appeals court.  It would have to be unreasonable, arbitrary, or unconscionable such that no conscientious judge could admit the evidence.  It’s an evidentiary decision as to whether the evidence does fulfill those 404(B) purposes and that decision is subject to an abuse of discretion review. Mr. Smith fails to address this at all.

What Was On Their Minds

Smith’s Propositions of Law

On one hand Mr. Smith’s proposition talks about a bright line, noted Justice French. If there’s a prior acquittal that should be barred. And yet we are talking about the facts of the case. If we are talking about the facts, that’s not a bright line.  Do we need to even discuss the facts in this case? As for the Constitutional issues, are we talking about the Ohio Constitution or are we only talking about the U.S. Constitution?  Later she asked the prosecutor the same question and said she was still getting hung up on the distinction between Proposition 1 and Proposition 2.

The Ohio Constitution

When it comes to interpreting what the U.S. Constitution requires, we are bound by what the U.S. Supreme Court tells us, commented Justice French. Is there any room for us to go outside what Dowling has told us?

Haven’t we said in essence in Craig that we agree with Dowling and that the two provisions here are in sync, asked Chief Justice O’Connor?

Waiver/Forfeiture

Did Mr. Smith raise Ohio Constitutional issues below, asked Justice French? Was this raised as an assignment of error in the court of appeals?

The Prior Acquittal Evidence

Was the jury informed that Mr. Smith was acquitted of those old charges, asked Justice French?

Didn’t the jury in this case also hear from the prosecuting witness in the first case who insisted in 3 different formats this is what happened to her by this individual, asked Chief Justice O’Connor?  To which Justice Donnelly immediately rejoined, just like the first jury did which acquitted the defendant?

Permissible Prior Acts Evidence

I get that there was some kind of loose language, commented Justice DeWine, but how is this acquittal evidence not relevant in this case to accident? Mr. Smith seemed clearly to be arguing that this was an accident, that he didn’t intend to do this, and that he was just rubbing baby oil on this child? Doesn’t the prior act suggest that he had some other purpose other than rubbing baby oil? Isn’t that pretty probative? If he’s abused children before, it’s pretty probative that his motive is not just to apply the ointment, right?

Don’t we also look at Mr. Smith’s defense, which was inadvertence or mistake or accident, asked Chief Justice O’Connor? He said he was only rubbing oil on her and if something inappropriate happened it was by accident, she noted.

Impermissible Prior Acts Evidence

Part of my concern here is because clearly this evidence doesn’t come in for common scheme, noted Justice DeWine.  It doesn’t come close to meeting the test.  And we really don’t know why the trial judge allowed it in, whether it was accident, which seems a much better argument than common scheme, but there’s very little on the record about that. I am going to have a hard time finding a common scheme that goes back 30 years. I mean this just sounds like propensity evidence. And it doesn’t come in as a behavioral fingerprint, which is relevant only when identity is at issue, which it is not in this case.  So, if despite the specific reasons given by the prosecutor for the admission of this evidence, we think it is just propensity evidence, then what?

If the Court were to agree that this evidence seems to have been brought in for propensity, that it shouldn’t have come in, does the state have a fallback position, asked Justice French?

Best Practices

Is there any reason we shouldn’t say going forward that the best practice is for trial courts to make these kinds of findings and to have specific instructions like the federal courts do, asked Justice DeWine? It’s pretty hard to review these cases when there really aren’t explicit findings by the trial court on the 403 and 404 factors, when the court and counsel are less than clear about what the specific exception is. Would the state have any problem with that, if we said going forward the court should do this?

Standard of Review

If we don’t think this is relevant evidence of accident or intent then I don’t think it gets to an abuse of discretion standard, does it, asked Justice DeWine? Do we defer to legal decisions made by the trial court judges? Is a legal decision about evidence subject to abuse of discretion review?

This Jury and the Limiting Jury Instructions

Isn’t the reason we have instructions to keep jurors from falling into the propensity trap, asked Chief Justice O’Connor? The judge did instruct the jurors, who presumably speak English, about this. If they didn’t understand, they could have asked, could they not? Did defense counsel object to these instructions? Aren’t jury instructions usual territory for objections and review on appeal? What were the charges Mr. Smith was acquitted on in the second trial here? (answer: the rape charges). So apparently the jury did understand what they were supposed to do, and the instructions on that? The defense isn’t arguing they were confused on that, is it? The jury acquitted Mr. Smith on the two serious counts of rape. It seems to me that the jurors took their job seriously, she added.

Didn’t this limiting instruction come right after a rebuttal argument from the state in which they reference the earlier acquittal, asked Justice Donnelly? He added that the prosecutor said “I’ve been doing this for a long time. I can tell you the number of times where a jury much like yourself have come back and said not guilty. Just because a jury says not guilty doesn’t mean it didn’t happen.”

How do we tell whether the jury was relying on the evidence that maybe should or shouldn’t have come and not other evidence that also came in through other witnesses, asked Justice French?

How It Looks From The Bleachers

 To Professor Emerita Marianna Bettman

Unfortunately, like a win for the state.  I say unfortunately because this is an evidentiary rule that is subject to abuse, and I agree with Ms. Gieske that the exceptions can swallow this rule. It also doesn’t seem like the trial judge did any 403 weighing. And I think those limiting jury instructions really need to be more specifically tailored in order to make sense.

Justice DeWine seemed the most concerned over how close admitting the acquittal evidence came to impermissible propensity evidence, while Chief Justice O’Connor was adamantly unsympathetic to the defense position, especially since the jury did differentiate among the charges here, and acquitted Smith on the most serious ones.

I do think, though, especially if Justice DeWine can persuade others of his concerns, that even if the state wins, the Court might provide some best practices in this area going forward. I think Justices Donnelly and Stewart would be sympathetic to some carefully defined best practices. The federal test as set forth in the Merriweather case looks like a good guide.

I was also confused by Smith’s Constitutional argument, or lack thereof.  If he did raise a state Constitutional argument, (and arguably this issue was forfeited. We are now much more careful not saying waived when we mean forfeited. The deputy solicitor certainly got that message). I didn’t hear any historical or textual development whatsoever as to why the Ohio Constitution should provide greater protection in this area. Justice French has long voiced her concerns over lawyers and judges just saying there should be greater protections under the Ohio Constitution than under the federal one.  For example, she criticized her colleagues in the majority for doing just that in her dissent in State v. Bode. Justices French, DeWine, Fischer and Chief Justice O’Connor keep encouraging lawyers to make state constitutional arguments.  But to do so requires some real digging and historical analysis.  Just saying there is greater protection isn’t enough. I think Smith’s Ohio Constitutional argument is a non-starter.

On the other hand, for the Attorney General, Mr. Peterson did provide a focused textual and historical analysis of the Ohio Constitutional claim. He made an interesting point about the Double Jeopardy Clause of the Ohio Constitution speaking of being twice placed in jeopardy for the same offense, not the same evidence.  But very surprising to me was his casually dropped statement that if the Court does agree to review the Ohio Constitutional claim, it should hold that the Ohio Constitution provides no greater protection, and in fact likely less protection than the U.S. Constitution. Huh? Less? I was surprised none of the justices questioned him further on this. I found that troubling.

So, Constitution aside, I see this as primarily an evidentiary issue, about the proper and improper use of other acts evidence. Despite predicting a loss for Smith, I at least hope the Court tightens this up.

To Student Contributor Ivy Charneski

This looks like a win for the State to me. I think the Court agrees with the State that the prior acts evidence could be used to show lack of mistake, although I think the Court agrees with Smith that the evidence could not be used to prove common scheme. Nonetheless, it does seem like the Justices were troubled by the lack of 403 and 404 analysis on the record.  Also, I think the Court was intrigued by the idea of applying the same narrowing standard as the federal courts for admitting 404(B) evidence. However, I don’t think they would feel comfortable changing the standard in a case like Smith’s where I think the Court believes the lower courts reached the correct ultimate result. Though perhaps on another set of facts they would entertain adopting federal courts’ 404(B) standard.

Finally, on an observational note, I was surprised that the double jeopardy and collateral estoppel issues were not discussed more. My reading of the briefs made me think the collateral estoppel issues were the crux of this case. Yet, the arguments seemed to focus not on the constitutional double jeopardy issues, but rather with the proper application of the Williams test reflected in the second proposition of law.