583 N.E.2d 404 | Ohio Ct. App. | 1990
James Lewis III was convicted of one count of rape, R.C.
Lewis and the complaining witness, Julie Wilking, lived together for six months prior to the incident in question. It is undisputed that they were lovers, and had a sexual relationship. At approximately 9:00 a.m. on August 16, 1988, Lewis and Wilking left their home in Cedarville, Ohio, to drive to the home of Wilking's parents in Cincinnati. Soon after the trip began, however, an argument started which degenerated into a physical confrontation. It is undisputed that during this fight Lewis produced a .38 caliber pistol, with which he hit Wilking over the head causing several bumps and bruises. Wilking also suffered a busted lip, a black eye, and a bruised breast from the altercation, while Lewis sustained a bite wound to his inner thigh. Wilking claimed that Lewis had simply begun beating her in an unprovoked rage while he was driving. Lewis alleged that he was merely defending himself after Wilking had inexplicably attacked him and tried to cause their vehicle to run off the road. Neither combatant was indicted in regard to the fight.
After the fight ended, Wilking attempted to exit the vehicle, but was prevented from so doing by Lewis. Lewis and Wilking agreed that they needed to discuss the fight and returned to their home in Cedarville at approximately 10:00 to 10:30 a.m.
Wilking testified that when they entered their home Lewis threw her to the floor and began to kick her before dragging her by her hair into the living room. Then, according to Wilking, Lewis threatened her with his gun and raped her vaginally. Afterwards, Lewis laid down on the floor and went to sleep. Wilking admitted lying next to him while he slept, claiming that she feared he would awake if she attempted to flee. Wilking alleged that after fifteen minutes Lewis woke up and raped her anally. Wilking then left the house wearing only one shoe and leaving behind her glasses. She went to a local gas station where she called the police. Police records indicate that Wilking's call was received at 12:35 p.m. and that she complained only of having been beaten. When an officer arrived at the scene, however, she also alleged rape.
Lewis claimed that when they entered the house they talked for nearly an hour, and then had consensual vaginal intercourse. Lewis denied that the gun was in the house at this time. Lewis testified that he and Wilking slept for an hour or more, and upon awakening had consensual anal intercourse. The physician who treated Wilking after the incident testified that she exhibited no signs of trauma to either her vagina or anus. *40
During the trial, the jury heard the testimony of Pamela McCarthy over Lewis's objection. McCarthy testified that she and Lewis were cohabitating lovers four years prior to the incident in question. McCarthy claimed that in June 1984 Lewis had beaten her, forced her to perform fellatio, and had anal sex with her against her will. Lewis was not charged with rape on this matter, but was convicted of misdemeanor domestic violence based upon these facts.
The jury found Lewis not guilty of vaginally raping Wilking, but guilty of anally raping her. The jury also found that Lewis had control of a firearm during the latter act.
In his first assignment of error Lewis asserts that the trial court erred in admitting the testimony of Pamela McCarthy as to prior acts of nonconsensual anal intercourse. We agree.
The General Assembly has chosen to tightly restrict the admissibility of evidence of the prior sexual activity ofboth the complaining witness and the defendant in rape cases.
"Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section
Thus, contrary to the state's contention, the general rule of evidence regarding the admissibility of "other acts" testimony under Evid.R. 404(B) is not applicable to rape cases. Such evidence is only admissible if it falls into one of the categories mentioned above. In the instant case, there is no allegation that Wilking became pregnant or contracted a disease. Since Lewis admitted intercourse, there is no question as to the origin of semen. The testimony in question does not go to Lewis's past sexual activities with Wilking. Therefore, McCarthy should only have been allowed to testify if her statements were admissible under R.C.
R.C.
"In any criminal case in which the defendant's motive or intent, the absence of mistake or accident on his part, or the defendant's scheme, plan, or system in doing an act is material, any acts of the defendant which tend to show his motive or intent, the absence of mistake or accident on his part, or the *41 defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior or subsequent thereto, notwithstanding that such proof may show or tend to show the commission of another crime by the defendant."
This statute is an exception to the general rule that evidence of other acts is not admissible to prove any element in the crime for which the defendant now stands trial. State v.Hector (1969),
The state correctly points out that when Lewis asserted the defense of consent he raised the issue of his intent to commit rape. State v. Gardner (1979),
In its most recent pronouncement on the admissibility of "other act" testimony under R.C.
"Our analysis of the statute and case precedent indicates that scheme, plan, or system testimony of other acts is admissible to establish motive or intent where the similarities in the crimes indicate there is a strong likelihood that the offender in the solved crime also committed the unsolved crime. We agree with appellee that the evidence appears to establish Coleman's motive and intent. Therefore, we hold the trial court did not err by admitting the challenged testimony." State v.Coleman (1988),
While the requirement of only a "strong likelihood" may have stepped away from a strict necessity of situational proximity, it has no effect on the *42
requirement of a close temporal relationship. The Coleman court continued to require that the "other act" occur "within a period of time reasonably near to the offense on trial" to be admissible. Id. at 292,
Thus, assuming arguendo that the events alleged by Wilking and McCarthy were related as to situation and place, the question before us is whether they were related closely enough in time to make McCarthy's testimony admissible. A review of the cases on point show that they are not.
This court has held that in a rape case, testimony from a third party that the defendant raped her earlier on the sameday that he allegedly raped the complaining witness is admissible under R.C.
In the case at bar, the alleged anal rape of McCarthy took place four years before the alleged anal rape of Wilking. We find these events to be too temporally remote to have probative value as to Lewis's intent. Therefore, McCarthy's testimony should have been excluded under R.C.
The erroneous admission of "other acts" testimony is harmless error if there is no reasonable possibility that the testimony contributed to the accused's conviction. State v. Lytle (1976),
Lewis's first assignment of error is found to be well taken and is hereby sustained. *43
Lewis's second and third assignments of error assert that the trial court erred in failing to instruct the jury as to the limited purpose for which it could receive the testimony of McCarthy. We find these arguments to be essentially identical and will address them together. Both assignments of error will be sustained.
The state concedes that it was necessary to instruct the jury that the testimony of McCarthy that she was raped by Lewis could only be used to determine whether he had the intent to rape Wilking. As the Supreme Court has eloquently stated:
"Where evidence has been admitted for a limited purpose which the state claims shows the defendant did certain `other acts' which show the motive or intent of the accused, the absence of mistake or accident on his part, or the defendant's scheme, plan or system in doing the act in question which is alleged in the indictment, the jury should be instructed that such evidence must not be considered by them as any proof whatsoever that the accused did any act alleged in the indictment." State v.Flonnory (1972),
Due to the highly prejudicial nature of "other acts" testimony, the courts of this state have strictly applied the necessity of a limiting instruction. It has been held that a trial court commits reversible error if it waits until its general jury charge to issue a limiting instruction instead of issuing it at the same time that the "other acts" evidence is tendered. Baxter v. State (1914),
The record is clear that no limiting instruction was given to the jury when McCarthy testified. The state argues that this defect was cured in the trial court's general instructions. We are not in accord. The "limiting instruction" that the state points to appears on page 511 of the transcript. This reflects that the trial court merely read R.C.
To be effective, a limiting instruction on "other acts" testimony should specifically say that this evidence is not to be used as substantive evidence that the defendant committed the crime charged. State v. Pigott (1964),
Lewis's second and third assignments of error are found to be well taken and are hereby sustained.
Lewis's fourth and fifth assignments of error revolve around the unique pretrial publicity that this case received. Lewis argues that the trial court erred in not sustaining his motion to dismiss and in not having a sequestered voir dire. We are not in accord.
Ten days before the trial in the instant case, former Vice President George Bush made a publicity stop in Greene County during his successful campaign for the presidency. During his visit, Bush had a highly publicized meeting with the members of the Greene County Victim-Witness Program. This program was a federally funded effort by the prosecutor's office to offer support to complaining witnesses in criminal cases. The entire purpose of the stop in Greene County seems to be so that Bush could examine the "model program" that existed there. During his stay, Bush was accompanied by local United States Representative Mike DeWine and Greene County Prosecutor William Schenck (who was also chairman of the Bush campaign in Greene County). The event received extensive national and local media coverage.
Bush met with people who were then participants in the victim-witness program, including the complaining witness in the instant case, Wilking. Lewis has attached copies of several articles from various local newspapers to his brief wherein Wilking is identified by name and repeatedly referred to as a "crime victim," "rape victim," and "date-rape victim." Wilking herself is extensively quoted in various articles as having said that she spoke to Bush about increasing public awareness of "date rape." Wilking acknowledged under cross-examination to having made these statements to the media. After his meeting with Wilking and the others, Bush delivered a speech concerning his proposed anti-crime policy.
Lewis argues that because of the unusual pretrial publicity, the trial court should have dismissed the case or held a sequestered voir dire. However, the record does not reflect that Lewis moved for a sequestered voir dire. The trial court had no duty to sequester the veniremen sua sponte. Therefore, Lewis's fifth assignment of error must be overruled.
The remedy for pervasive pretrial publicity is a change of venue, not a dismissal. Irvin v. Dowd (1961),
Voir dire in this case lasted for six hours and occupies one hundred seventy-two pages of the transcript. At no point did either party inquire whether any of the veniremen were aware of Wilking's meeting with Bush. Lewis's attorney states that he chose not to mention the publicity because "[t]o remind the array of that during voir dire would have been suicidal." This court is not inclined to allow counsel to second-guess their tactical decisions.
The Supreme Court has repeatedly held that the best way to determine whether pretrial publicity has poisoned a criminal defendant's chance of a fair trial is the examination of veniremen in voir dire. State v. Bayless (1976),
Lewis's fourth and fifth assignments of error are found to be not well taken and are hereby overruled. Lewis's first, second, and third assignments of error are found to be well taken and are hereby sustained. Therefore, the judgment of the trial court will be reversed, and this cause will be remanded for further proceedings not inconsistent with this opinion.
Judgment reversedand cause remanded.
WILSON and McBRIDE, JJ., concur.
ROBERT L. McBRIDE, J., retired, of the Second Appellate District, sitting by assignment. *46