“On the facts of this case, we conclude that because Smith placed his intent at issue by claiming that his actions were accidental and not done with sexual intent, the trial court properly admitted evidence of the prior sexual-assault allegations.”
Justice DeWine, opinion of the Court
On September 22, 2020 the Supreme Court of Ohio handed down two merit decisions clarifying the proper use of other-acts evidence pursuant to Evid. R. 404(B). In State v. Smith, 2020-Ohio-4441, the Court unanimously upheld the conviction of Michael Smith for sex offenses involving his granddaughter. In State v. Hartman, 2020-Ohio-4440, the Court unanimously upheld the reversal of the rape conviction of Mitchell Hartman involving an adult woman. Both decisions were written by Justice DeWine. Smith’s case was argued on January 29, 2020; Hartman’s was argued February 25, 2020.
Smith Case Background
To understand the opinion in this case, more factual detail than usual is necessary.
The incident in 2016 involving Smith’s granddaughter
Smith planned to take three of his granddaughters, one of whom was ten-year-old R.E., to a movie on New Years Day 2016, but the youngest fell asleep so they missed the movie. Smith offered to keep the girls overnight and take them to the movie the next day, and their mother agreed. When the girls’ mother picked them up the next day, she noticed that R.E. did not seem like herself.
When the girls got home, R.E. told her mother something had happened at Smith’s house. She told her mother that at bedtime all three girls got into bed with Smith to watch a cartoon. R.E. was lying next to Smith and told him that she felt itchy from the dog hair on the bed. Smith applied baby oil, as he had in the past, but this time instead of applying it only to her back, he rubbed the oil under her clothes on her chest, buttocks and vagina, and then began to lick her breasts and vagina. After a while, Smith put on a pornographic film, but by then all the girls had fallen asleep. The next morning, R.E. was awakened by Smith pulling her hand down to his erect penis. R.E. pulled away but Smith persisted, attempting to pull down her underwear, but she moved away.
When R.E.’s mother learned what had happened, she went to the police. At their suggestion she called Smith from a recorded line at the station.
Smith’s Version
In the recorded call with R.E.’s mother, Smith admitted putting baby oil on R.E., but denied any inappropriate touching and insisted any improper touching or brush with his penis was accidental. He also clamed he had no pornography but that R.E. may have seen a few seconds of an R-rated movie that began playing accidentally.
Smith is Charged
Smith was indicted on two counts of rape, three counts of gross sexual imposition and one count of disseminating matter harmful to a juvenile. The first trial resulted in a mistrial, and a second trial was held before a different judge.
The 1986 “Other Acts” Evidence Introduced in the Second Trial
In 1986, Smith was charged with the sexual battery of his daughter, V.M., when she was a minor. A jury acquitted Smith of that charge. Before the trial in the present case, the state gave notice that it intended to call V.M. and her younger sister L.S., both now adults, to testify about the events that gave rise to the 1986 charges against Smith because the conduct was so similar to what had happened to their niece, R.E. Smith filed a motion in limine to exclude this testimony. At the hearing on this motion both V.M. and L.S. testified as to conduct by Smith that resembled Smith’s conduct toward L.E.
The state argued the testimony of V.M. and L.S. was admissible under Evid.R. 404(B) to establish a common scheme and lack of a mistake or accident, and to rebut Smith’s claims that any inappropriate touching had been unintentional and the showing of a pornographic film accidental. Smith’s lawyer argued that evidence that the defendant may have committed two crimes of the same nature was not enough to show a common scheme. Defense counsel also argued that evidence of 30-year-old crimes for which Smith had been acquitted would force Smith to defend twice against the same charges, raising constitutional double jeopardy concerns, not to mention practical ones.
Smith’s Conviction
The trial court found evidence from the 1986 incidents potentially admissible to show “lack of mistake, preparation, and plan.” The court did not engage in a specific Evid. R. 403(A) ruling of whether any probative value was outweighed by the evidence’s prejudicial effect.
Before the second trial started, defense counsel renewed the motion in limine and argued that the state was collaterally estopped from presenting evidence of the 1986 allegations because Smith had been acquitted of those charges and the evidence did not meet the requirements of Evid. R. 404(B). The trial court disagreed and ruled the evidence could be admitted at retrial.
V.M. and L.S. gave testimony at Smith’s retrial that was substantially the same as the testimony each gave at the hearing on the motion in limine. Before they testified, the trial judge gave the jury a limiting instruction that their testimony could not be considered to prove Smith’s character and that he acted in conformity therewith. And in a final instruction, the trial court told the jury that the other-acts evidence could be considered “only for the purpose of deciding whether it proves the Defendant’s motive, opportunity, intent, or purpose, preparation, and/or plan to commit the offense charged in this trial.” Smith was acquitted on the rape charge but was convicted on the gross sexual imposition and dissemination charges.
The Appeal
In a unanimous decision, the First District Court of Appeals affirmed the convictions. The First District held that the other-acts evidence was properly admitted because it was relevant to show motive, intent, and absence of mistake. The appeals court also rejected Smith’s double jeopardy constitutional challenge on the ground that the standard of proof under Evid.R. 404(B) is lower than for a criminal conviction, and therefore the acquittal did not collaterally estop the state from presenting evidence of the 1986 allegations.
Read the oral argument preview here and the analysis here.
Key Precedent
Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)
U.S. Constitution, Amendment V (“No person shall … be subject for the same offense to be twice put in jeopardy of life or limb.”)
*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.”)
Bainbridge v. State, 30 Ohio St. 264 (1876) (prior acquittal on a charge would not preclude the state from using evidence from the first trial to convict the defendant of a similar offense.)
State v. Rose, 89 Ohio St. 383 (1914) (the term “offense” in Ohio’s double jeopardy clause simply means a crime. “The words ‘same offense’ mean same offense, not the same transaction, not the same acts, not the same circumstances or same situation.”)
Patterson v. State, 96 Ohio St. 90 (1917) (“There is no guarantee, 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 federal double jeopardy clause does not preclude evidence of conduct that was subject to a prior acquittal from being introduced as other-acts evidence in a subsequent trial for a different offense.)
State v. Gustafson, 76 Ohio St.3d 425 (1996) (Double Jeopardy Clauses of the Ohio and United States Constitutions are coextensive.)
United States v. Gomez, 763 F.3d 845 (7th Cir. 2014) (Because other-acts evidence “‘almost always carries some risk that the jury will draw the forbidden propensity inference,’” courts should be vigilant in balancing the prejudicial impact of the evidence against its probative value.)
State v. Hartman, 2020-Ohio-4440 (Establishing a standard for courts to evaluate proposed other-acts evidence under 404(B). Evidence of a defendant’s other acts may be admissible to negate his claim of accident or mistake with respect to the crime for which the defendant is on trial. Such evidence demonstrates, “‘by similar acts or incidents, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge.’”)
*This evidence rule is the focus of the opinion
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.
Does the Court Adopt Smith’s Proposed Propositions of Law?
No
Executive Summary
The other-acts evidence in this case was properly admitted to show absence of mistake, one of the permissible purposes of such evidence under Evid. R. 404(B). The evidence in the case was highly probative of absence of mistake, was not outweighed by its prejudicial effect, and the trial court did not abuse its discretion in admitting it. However, the jury instruction given in the case was overbroad, in that it listed multiple reasons for which the other-acts evidence could be admitted which were not relevant to the case. Trial courts are cautioned to charge juries only on the exception(s) relevant to the case at hand. But here, no objection to the instruction was made, and thus, there was no plain error.
The Court also rejected Smith’s Constitutional challenge.
Merit Decision
Analysis
Constitutional Arguments
Double Jeopardy
Smith argued that both the Ohio and U.S. Constitutions contain a collateral estoppel element that bars the admission of evidence of conduct subject to a previous acquittal. The Ohio high court quickly rejected the federal constitutional argument, because the U.S. Supreme Court has already rejected that very argument.
Article I Section 10 of the Ohio Constitution
Turning to Article I Section 10 of the Ohio Constitution, DeWine starts with the language, “[n]o person shall be twice put in jeopardy for the same offense,” homing in on the language “same offense.” Before addressing the merits of Smith’s argument that the Ohio Constitution includes a collateral-estoppel element, DeWine does a brief new judicial federalism review. The Court has generally treated Ohio’s double-jeopardy protection as coextensive with that of the Fifth Amendment to the U.S. Constitution, as the language of each is nearly identical. But as established many years ago in Arnold v. Cleveland, the Ohio Constitution is a document of independent force and the Ohio high court is not bound to be in lockstep with federal courts in interpreting its own Constitution. But, DeWine notes, Smith failed to offer any persuasive reason why the Ohio Constitution includes a collateral estoppel element that would preclude the use of other-acts evidence relating to a prior acquittal in a later prosecution for a different offense. And the Court finds that Smith offered nothing from the text or the history of Ohio’s constitutional provision to support the relief he is after.
Starting first with the text, the Court notes that the word “offense” in Article I Section 10 simply means a crime, and that the words “same offense” mean exactly that, and not the same acts or circumstances involved. “The provision speaks not about the relitigation of issues, but of offenses,” wrote DeWine. So, from the textual analysis viewpoint, the text does not bar the use of evidence from Smith’s 1986 prosecution, because that prosecution was for different offenses than the one involved in this case.
Turning next to the history, Smith fared no better. Historically, as far back as 1876, in Bainbridge, the Court has interpreted Ohio’s double-jeopardy provision as offense-based. In order for the double jeopardy protection to apply, the prosecution must be for the exact same act and crime. Double jeopardy protection should not be applied to create immunity for crimes which do not constitute the offenses for which a criminal has been exposed to punishment. DeWine gives a number of examples.
Bottom Line on Double Jeopardy
In short, the same evidence can be used if the offense is different. The Court rejects Smith’s argument that admission of other-exacts evidence violates Article I Section 10 of the Ohio Constitution.
Due Course of Law Provision
Smith also argued the admission of other-acts evidence of a prior acquittal violates the fundamental fairness of Article I Section 16, Ohio’s Due Course of Law provision. But the Court found he had not raised that issue below and refused to consider it.
Other-Acts Evidence
The Fundamentals
The main purpose of Evid. R. 404(B) is to prohibit the use of other acts to show that the defendant has a bad character and acted in conformity with that bad character. A once-a-bad- person always-a- bad-person kind of thing is what is impermissible. But there are permissible non-character-based purposes for other-acts evidence, such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident.
In State v. Hartman, the case released the same day as this case, the Court provided a guide to evaluate proposed other-acts evidence for admissibility, noting that the threshold question is relevancy. As the Court notes in both that case and in this one, such evidence is, if anything, often too relevant. What trial courts must focus on is whether the proffered evidence is relevant to the particular purpose for which it is offered, as well as whether it is relevant to an issue that is actually in dispute. If the evidence passes both those tests, the trial court must still decide, pursuant to Evid.R. 403(A), whether the probative value of the evidence is outweighed by its prejudicial effect, or if it would be misleading to the jury. And trial courts are cautioned to be vigilant in this 403(A) balancing because this kind of evidence “almost always carries some risk that the jury will draw the forbidden propensity evidence,” DeWine notes.
Application of Balancing Principles to Smith’s Case
In this case the state argued, and the trial court found, that the testimony of V.M. and L.S. was admissible to show a common scheme or plan and to show absence of mistake. The Court finds the former was incorrect and the latter was proper.
In Hartman, the Court set out a detailed explanation of common scheme or plan evidence. Applying those principles to Smith’s situation, DeWine wrote, “In short, evidence of a plan must generally demonstrate that the other acts are part of the same transaction as the crime charged or part of a sequence of events leading up to the instant crime.” The evidence must show that the other acts and crime at issue are “tied to the same grand design,” or else that kind of evidence will be nothing more than forbidden propensity evidence.
Trial Court Got it Wrong About Admissibility to Show Common Plan
The Court concludes that the trial court in this case was wrong in concluding that the evidence was admissible to show a common scheme or plan. The other-acts testimony in this case was not evidence of a plan. Smith’s alleged abuse of his daughter and granddaughter were stand-alone incidents, 30 years apart, without a direct connection.
DeWine elaborates on how litigants tend to conflate plan evidence with modus operandi evidence. Separate offenses can become linked if they share some “distinctive, one-of-a-kind” feature. And while there were similarities in this case between Smith’s alleged abuse of his daughter and granddaughter, those similarities weren’t enough to show a signature modus operandi. DeWine also adds an important reminder here that modus operandi evidence is only relevant to establish the identity of the perpetrator, if in doubt. Here Smith’s identity as the perpetrator was not in dispute.
Trial Court Got it Right About Admissibility to Show Absence of Mistake
The defense theory was when Smith applied baby oil to R.E.’s body or brushed up against her, he did so without sexual intent and any inappropriate contact was accidental. He also claimed any playing of an R-Rated movie was accidental. If these alleged acts occurred, this put Smith’s sexual intent in performing them squarely at issue.
DeWine explains how absence-of-mistake evidence is closely linked to intent, but that to be probative the evidence must be sufficiently similar to the crime charged. In this case, Smith admitted that he had rubbed baby oil on R.E.’s chest but denied having any sexual intent in doing so. The evidence from both of Smith’s adult daughters that Smith had touched V.M.’s chest when she was a child and that he had gotten sexual gratification from it made that evidence admissible to show not that Smith had a propensity to molest young girls, but that when he touched R.E., he did so with a sexual intent and that it was permissible to infer such contact was sexually gratifying to him. The same was true with the showing of pornography, refuting Smith’s innocent explanation.
“Because Smith placed his intent at issue by claiming that his actions were accidental and not done with sexual intent, the evidence was properly admissible to show absence of mistake—or to put it another way, that he committed the acts not accidentally, but with the intent of sexual gratification,” DeWine wrote.
(403)(A) Balancing Requirement
Even when other-acts evidence is permissible, one last step remains. The court must still weigh the probative value against the danger of unfair prejudice and jury confusion. In this case, the judge did instruct the jury that since Smith had been acquitted of the previous allegations, the jury was free to believe or disbelieve the testimony of V.M. and L.M. The Court found no abuse of discretion in admitting this evidence, which it characterized as “highly probative.”
Jury Instruction Overbroad
The jury instruction given listed multiple irrelevant purposes for which the other-acts evidence could be considered. Going forward, courts are cautioned to tailor their instruction to the specific permissible purposes actually relevant to the case, and to explain to jurors in plain language the proper and improper inferences that may be drawn from the other-acts evidence. But since there was no objection by defense counsel to the jury charge that was given, which largely followed the model OJI instruction, the Court found no plain error.
Bottom Line
No Constitutional or evidentiary bar to the admission of evidence involved in Smith’s previous acquittal.
Case Dispositon
Appeals Court judgment affirmed.
Trial Court Judge (allowing other-acts evidence to show plan was incorrect but allowing other-acts evidence to show lack of mistake was correct; jury instruction overbroad but otherwise correct.)
Hamilton County Common Pleas Court Judge Jody Luebbers
First District Court of Appeals (affirmed)
Opinion authored by Judge Russell Mock, joined by Judges Charles Miller and Dennis Deters
Concluding Observations
I predicted a win for the state here, but with hope that the Court would take the opportunity to tighten up and clarify an often abused and confused area of evidence. It looks like along with the Hartman case, which I look forward to reading and reviewing, the Court did exactly that here. I particularly appreciate Justice DeWine reminding trial judges to tailor their jury instructions to the specific permissible use in the case and not just list them all. I used to see that far too often in my former appellate judging days. I also want to compliment Justice DeWine once again for the clarity of his writing—and this evidence rule presents quite a challenge in that regard.
After argument, after predicting a win for the state, I wrote,
“…this is an evidentiary rule that is subject to abuse, and I agree with Ms. Gieske [counsel for Smith] 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 was also confused by Smith’s Constitutional argument, or lack thereof. If he did raise a state Constitutional argument… I didn’t hear any historical or textual development whatsoever as to why the Ohio Constitution should provide greater protection in this area…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…
“ 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.”
And so the Court did.