State v. Howton
2017 Ohio 4349
| Ohio Ct. App. | 2017Background
- Victim (AD) let defendant Brooks Howton into her home; Howton forcibly pushed her to the bedroom, undressed her, vaginally penetrated her with a vibrator, choked her until she lost consciousness, then later in the living room performed oral sex and vaginal intercourse after an interval.
- Police arrested Howton at the home later that morning; indictment charged aggravated burglary, kidnapping (to engage in sexual activity), felonious assault, two counts of rape, and tampering (latter dismissed).
- At trial Howton testified and repeatedly described himself as nonviolent and denied the accusations, then admitted hitting/choking AD and claimed the sex was consensual or "make-up sex."
- On rebuttal the State called two witnesses (SS and AH) whose names had not been earlier disclosed; the trial court found Howton opened the door to character evidence and allowed rebuttal after granting a short continuance.
- Jury convicted Howton of aggravated burglary, kidnapping, felonious assault, and one count of rape; sentencing court declined to merge kidnapping and rape. Howton appealed raising merger, undisclosed rebuttal witnesses/other-acts evidence, and ineffective assistance for not requesting an aggravated-assault jury instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether kidnapping and rape are allied offenses requiring merger | State: offenses were separate in time, place, and conduct; may be punished separately | Howton: kidnapping was incidental to rape and should merge | Court: Not allied — occurred at different times/locations with an interlude and separate conduct/animus; no merger |
| Whether State violated Crim.R.16 by not disclosing rebuttal witnesses | State: did not reasonably anticipate needing those witnesses; disclosed promptly after defendant opened door | Howton: State should have anticipated rebuttal and disclosed earlier | Court: No violation — witnesses became relevant only after defendant put character at issue; one witness learned of during trial and disclosed immediately |
| Admissibility of rebuttal other-acts evidence (Evid.R.404/R.C.2907.02) | State: defendant opened the door by testifying to good character and denying conduct; rebuttal permissible | Howton: rebuttal introduced unduly prejudicial other-acts evidence he never expected | Court: Admission proper — defendant placed character at issue; statutory limits waived by opening the door; trial court did not abuse discretion |
| Ineffective assistance for not requesting aggravated-assault instruction | Howton: counsel should have sought lesser-included aggravated-assault instruction given provocation theory | State: counsel’s choices were trial strategy and provocation evidence insufficient | Court: No deficient performance or prejudice — provocation insufficient under Ohio law to require aggravated-assault instruction |
Key Cases Cited
- State v. Sergent, 148 Ohio St.3d 94 (2016) (explaining R.C. 2941.25 double jeopardy/merger principles)
- State v. Underwood, 124 Ohio St.3d 365 (2010) (same; allied-offenses analysis requires considering defendant's conduct)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
- State v. Deem, 40 Ohio St.3d 205 (1988) (aggravated assault requires serious provocation; lesser-included instruction rule)
- State v. Finnerty, 45 Ohio St.3d 104 (1989) (limits on rebuttal character evidence and scope of rebuttal testimony)