State v. Newman Paul Powih
2017 Ohio 7208
| Ohio Ct. App. | 2017Background
- Newman Paul Powih was indicted for rape (first-degree), gross sexual imposition (fourth-degree), and abduction (third-degree) arising from a May 21, 2016 incident at a Brown County nursing home where he digitally penetrated and struck coworker A.H. while two dementia residents were present.
- Ten days earlier, the state notified it would introduce testimony from M.B., a coworker at a Warren County nursing home, describing a May 11, 2016 incident in which Powih similarly pressured, restrained, and sexually touched her.
- Powih moved in limine to exclude M.B.’s testimony under Evid.R. 404(B) and 403. The trial court denied the motion but gave limiting instructions; M.B. testified at trial over objection.
- The jury convicted Powih on all counts. The court merged GSI into rape, classified him as a Tier II sex offender, and sentenced him to consecutive prison terms totaling six years.
- On appeal Powih raised (1) erroneous admission of other-acts evidence and (2) failure to merge rape and abduction as allied offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of May 11 other-acts (Evid.R. 404(B)/403) | State: M.B. evidence shows motive, intent, absence of mistake, and common plan | Powih: Evidence only shows propensity; unfairly prejudicial and not inextricably related | Affirmed: other-acts admissible under R.C. 2945.59/Evid.R.404(B); probative value not substantially outweighed by unfair prejudice given limiting instructions |
| Merger of rape and abduction (allied-offenses R.C. 2941.25) | State: rape and abduction are of dissimilar import; produced separate harms | Powih: Abduction was incidental and arose from same conduct/animus as rape, so offenses should merge | Reversed in part: rape and abduction are allied here (same animus, not separate acts or harms); remanded for resentencing with state to elect offense for sentencing |
Key Cases Cited
- State v. Williams, 134 Ohio St.3d 521 (Ohio 2012) (sets three-part test for admissibility of other-acts evidence under Evid.R. 404(B): relevance, proper purpose, and balancing under Evid.R. 403)
- State v. Ruff, 143 Ohio St.3d 114 (Ohio 2015) (directs analysis for allied offenses: conduct, animus, and import)
- State v. Underwood, 124 Ohio St.3d 365 (Ohio 2010) (failure to raise allied-offense issue forfeits all but plain error)
- State v. Whitfield, 124 Ohio St.3d 319 (Ohio 2010) (on state election and merger procedure when offenses must be merged)
- State v. Morris, 132 Ohio St.3d 337 (Ohio 2012) (abuse-of-discretion standard for evidentiary rulings)
- State v. Lowe, 69 Ohio St.3d 527 (Ohio 1994) (substantial proof required that defendant committed the other acts before admission under Evid.R. 404(B))