State v. Plevyak, 2014 Ohio 2889

Defendant James M. Plevyak was indicted on four counts of gross sexual imposition and one count of disseminating matter harmful to juveniles based on alleged sexual contact with a nine‑year‑old (victim Z.R.); one count was dismissed at trial.
Victim testified to a course of conduct: repeated exposure and masturbation by Plevyak, viewing porn on a cell phone, bathing the child and eventually genital touching; victim reported the conduct after about a year.
Police interviewed Plevyak; he admitted bathing the child and submitted to a stipulated polygraph in which the examiner testified Plevyak displayed deception on questions related to the charged acts.
At trial the state introduced testimony about prior and escalating sexual conduct (so‑called “other acts”); defense moved in limine under Evid.R. 404(B) alleging lack of pretrial notice and sought exclusion.
The trial court admitted the other‑acts evidence; the jury convicted Plevyak on three counts of gross sexual imposition and the court sentenced him to three consecutive three‑year terms (nine years total).
On appeal Plevyak raised (1) erroneous admission of other‑acts evidence (notice and abuse of discretion) and (2) that convictions were against the manifest weight of the evidence.

Issue	Plaintiff's Argument (State)	Defendant's Argument (Plevyak)	Held
Admissibility / Evid.R. 404(B) notice	State: evidence was inextricably interwoven with charged crimes or otherwise discoverable in open file so no unfair surprise; in any event admission was proper to give full picture	Plevyak: state failed to provide reasonable pretrial notice required by amended Evid.R. 404(B) and trial court did not perform required Williams analysis; evidence was unduly prejudicial	Court: No prejudice or unfair surprise; counsel knew of evidence from discovery and was not surprised; any lack of pretrial notice was harmless; trial court did not abuse discretion admitting the evidence under Williams/404(B) framework
Manifest weight of the evidence	State: victim, mother, other witnesses, and polygraph examiner provided credible, compelling proof of guilt including sexual gratification element	Plevyak: victim’s account changed and expanded over time; state failed to prove sexual gratification element	Court: Verdict not against manifest weight; jury properly credited witnesses; evidence including victim testimony and polygraph support convictions

State v. Williams, 134 Ohio St.3d 521 (Ohio 2012) (three‑step test for admissibility of other‑acts evidence)
State v. Lowe, 69 Ohio St.3d 527 (Ohio 1994) (other acts admissible when inextricably related or showing background)
State v. Curry, 43 Ohio St.2d 66 (Ohio 1975) (other‑acts evidence inadmissible to prove propensity but may be admissible for specified purposes)
State v. Morris, 132 Ohio St.3d 337 (Ohio 2012) (reinforcing that other‑acts cannot be used to prove character to show action in conformity)
State v. Thompkins, 78 Ohio St.3d 380 (Ohio 1997) (standard for reversing on manifest weight)
State v. Sage, 31 Ohio St.3d 173 (Ohio 1987) (improper evidence may be harmless when remaining evidence overwhelmingly proves guilt)