State v. Daylong
181 N.E.3d 1245
Ohio Ct. App.2021Background
- Donald Daylong was indicted on six counts arising from conduct toward his ex‑girlfriend A.M. (Sept. 17–Oct. 1, 2018): assault, attempted burglary, attempted trespass in a habitation, disrupting public services, menacing by stalking, and violating a protection order; he pleaded not guilty.
- The State gave notice under Evid.R. 404(B)/R.C. 2945.59 of other‑acts evidence concerning a prior girlfriend (A.B., incidents in 2016); the trial court admitted part of that testimony with a limiting instruction.
- A.M. testified to repeated harassment, physical contact (bruising), attempted entry, tampering with her electrical box (power outage), impersonating a City/PD caller, and violations of a protection order; GPS and police testimony corroborated some events.
- A.B. testified about a pattern of stalking/harassment in 2016 (broken windows, tampering with electrical, impersonating police, breaching protection order), which the State offered as modus operandi/identity evidence.
- Jury convicted Daylong on all counts; trial court sentenced him to an aggregate three‑year prison term. Daylong appealed, asserting (1) improper admission of other‑acts evidence, (2) insufficiency/manifest weight, (3) erroneous jury instruction and limits on closing argument about "public" in R.C. 2909.04(A)(2), and (4) erroneous admission of prior‑conviction evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Admissibility of other‑acts (Evid.R. 404(B)) | State: A.B.'s testimony shows a distinctive modus operandi/behavioral fingerprint relevant to identity for certain charges. | Daylong: Other‑acts were propensity evidence and inadmissible to prove he acted in conformity with bad character. | Court: No error — identity was contested for attempted burglary/trespass/disrupting public services; A.B.'s evidence probative as modus operandi; limiting instruction mitigated prejudice; admission within trial court's discretion. |
| 2) Sufficiency and manifest weight | State: Evidence (A.M.'s testimony, GPS, officer observations, tampered electrical box) proves each element beyond a reasonable doubt. | Daylong: A.M. lacked credibility; little/no direct physical evidence or eyewitness tying him to some acts. | Court: Convictions upheld — A.M.'s testimony (and circumstantial corroboration) was sufficient; jury did not lose its way on credibility or weight. |
| 3) Jury instruction / closing argument re R.C. 2909.04(A)(2) ("public") | State: Statute protects "utility service to the public" as a type of service; interrupting power to a single residence qualifies. | Daylong: "Public" requires interruption to the public at large; single residence insufficient; trial court erred in instruction and barring argument. | Court: Statute unambiguous; "to the public" modifies the type of service, not number of victims; instruction and denial of argument proper. |
| 4) Admission of evidence of prior conviction mentioned in 911 call | State: Mention of prior conviction probative of A.M.'s state of mind/fear; not used for propensity. | Daylong: Admission constituted improper propensity evidence under Evid.R. 404(B); counsel failed to object (plain error). | Court: Waiver of non‑plain error objections; no plain error shown—evidence was admissible for victim's state of mind and, in any event, did not affect substantial rights given other overwhelming evidence. |
Key Cases Cited
- State v. Hartman, 161 Ohio St.3d 214 (2020) (clarifies limits on admissibility of other‑acts evidence and requires tailored limiting instructions when modus operandi evidence is admitted for identity)
- State v. Smith, 162 Ohio St.3d 353 (2020) (Evid.R. 404(B) prohibits propensity use; other‑acts admissible only for non‑character purposes and must be relevant to issues actually in dispute)
- State v. Williams, 134 Ohio St.3d 521 (2012) (trial court discretion and procedural framework for 404(B) evidence)
- Huddleston v. United States, 485 U.S. 681 (1988) (other‑acts evidence must be relevant to permissible purpose and to disputed issues)
- State v. Thompkins, 78 Ohio St.3d 380 (1997) (standard for reviewing sufficiency and manifest‑weight claims)
- Blakemore v. Blakemore, 5 Ohio St.3d 217 (1983) (abuse of discretion standard)
- State v. Worley, 164 Ohio St.3d 589 (2021) (modus operandi admissibility where slight differences do not preclude identification value)
- State v. Lowe, 69 Ohio St.3d 527 (1994) (modus operandi/identity precedent)