2004 Ohio 1234 | Ohio Ct. App. | 2004
{¶ 3} On June 4, 2002, Ms. Johnson hosted a picnic at her home for friends and relatives. After the party, Ms. Johnson, leaving her children at home, transported some of the children who attended the party to their homes. While Ms. Johnson was away, Mr. McAdory appeared at the victim's home and knocked on the door. The victim opened the door and let Mr. McAdory into the house. Mr. McAdory began to play with the children, including the victim. Specifically, he lifted the victim up, "[m]aking her touch the ceiling[.]" While he was lifting the victim, Mr. McAdory put his hand into her pants and inserted two fingers into her vagina. After he placed her back down on the ground, the victim went upstairs to change her clothing. Mr. McAdory sent two of the victim's siblings out to his car, which was parked in front of the victim's home, to turn the ignition off in his vehicle because he had left it running.
{¶ 4} Mr. McAdory followed the victim upstairs and opened the door to her bedroom, where she was changing her clothing. He then threw the victim on the bed, pulled off her shorts and underwear, and laid on top of her. Once again, he inserted his fingers into her vagina. Mr. McAdory then unbuttoned his pants, inserted his penis into her vagina, and moved up and down repeatedly. During this incident Mr. McAdory covered the victim's mouth with his hand.
{¶ 5} While the incident was occurring, the victim's sister came upstairs because she thought she had heard the victim call out to her. When she entered the victim's bedroom, the victim's sister saw Mr. McAdory on top of the victim. At this point, Mr. McAdory removed himself from on top of the victim and went downstairs. Before leaving the house, Mr. McAdory asked the victim for a hug, and she refused. Thereafter, Ms. Johnson phoned home, at which point the children informed her of the events that had occurred. Ms. Johnson came home immediately, and called 911 to report the incident.
{¶ 6} In the early morning hours on June 5, 2002, Mr. McAdory was observed masturbating and fondling himself in the waiting room at the Akron City Hospital. When asked why he was at the hospital by a hospital employee, Mr. McAdory responded that he was looking for his grandmother. After discovering that his grandmother was not a patient at the hospital, hospital security handcuffed Mr. McAdory and detained him. The hospital called the Akron Police Department, and pursuant to this call an officer arrived at the hospital and arrested him. The officer noticed that Mr. McAdory's demeanor and appearance matched a "Be on the lookout" which the police department had issued earlier that evening due to the reported rape incident. The officer contacted the police officers that were handling that rape call, who then arrived at the scene and took Mr. McAdory into custody.
{¶ 8} On September 18, 2002, the State filed a notice of intent to use similar act evidence in the State's case-in-chief and a memorandum in support. On September 20, 2002, the trial court granted the motion, permitting the use of this evidence by the State during trial. On January 10, 2003, a jury found Mr. McAdory guilty of three counts of rape, one count of kidnapping, and one count of public indecency. Thereafter, the court also adjudicated Mr. McAdory a violent sexual predator. The trial court sentenced Mr. McAdory accordingly. This appeal followed.
{¶ 9} Mr. McAdory timely appealed, asserting five assignments of error. We combine the first, second, and third assignments of error to facilitate review.
{¶ 10} In his first and third assignments of error, Mr. McAdory claims that he was denied his right to due process of law and a fair trial when evidence of other acts of sexual conduct and prior convictions were introduced at trial. In his second assignment of error, Mr. McAdory contends that this evidence of prior acts is furthermore inadmissible because these acts are not related in nature, time, and place to the offense that he was actually charged with in the instant case. Mr. McAdory's first, second, and third assignments of error are without merit.
{¶ 11} A trial court possesses broad discretion with respect to the admission of evidence. State v. Ditzler (Mar. 28, 2001), 9th Dist. No. 00CA007604, citing State v. Maurer (1984),
{¶ 12} Generally, evidence of prior criminal acts completely independent of the crime for which a defendant is being tried, is inadmissible. State v. Wilkins (1999),
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for otherpurposes, such as proof of motive, opportunity, intent,preparation, plan, knowledge, identity, or absence of mistake oraccident." (Emphasis added.)
{¶ 13} 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 defendant's scheme, plan, or system in doing the act in question may be proved, whether they are contemporaneous with or prior orsubsequent thereto, notwithstanding that such proof may show ortend to show the commission of another crime by the defendant." (Emphasis added.)
{¶ 14} The statute and rule must be read in harmony with each other. Ali, supra, citing State v. Broom (1988),
{¶ 15} The Supreme Court of Ohio has articulated two requirements for the admission of other acts evidence. Broom,
{¶ 16} Proof of one of the purposes set forth in Evid.R. 404(B) must go to an issue which is material in proving the defendant's guilt for the crime at issue. State v. DePina
(1984),
{¶ 17} Evidence of other acts may prove the issue of identity in two instances. The first instance is when the other acts "`form part of the immediate background of the alleged act which forms the foundation of the crime charged in the indictment,' and which are `inextricably related to the alleged criminal act.'"Lowe,
{¶ 18} Other acts evidence, in order to prove identity through a modus operandi, must be related to and share common features with the offense at issue. Id. When such evidence establishes an idiosyncratic pattern of criminal conduct, it is not necessary for the offense at issue to be near in time and place to the other acts introduced into evidence; "the probative value of such conduct lies in its peculiar character rather than its proximity to the event at issue." DePina,
{¶ 19} In the instant case, the evidence of Mr. McAdory's prior sexual acts and corresponding convictions satisfy the Supreme Court's two prong test governing other acts evidence. SeeBroom,
{¶ 20} In their case-in-chief, the State presented evidence of Mr. McAdory's engagement in prior sexual acts with other victims, through the testimony of police officers involved in each respective case and the testimony of the prior victims themselves. The first victim-witness testified that she had been raped by Mr. McAdory in January 1998, when she was 14 years old. She testified that she had met Mr. McAdory at a party being held at the house of a girl whom Mr. McAdory was dating at that time. She testified that while she was using the bathroom during the party, Mr. McAdory attempted to enter the bathroom, and said to her that if she did not open the door for him, that he would "break it down." She testified that she was helped to a bedroom, and that Mr. McAdory lay down on top of her, began to remove her pants, and inserted his penis into her vagina. She also testified that he was holding her down on the bed during the incident.
{¶ 21} Detective Jeffery Flaker testified after this witness. Detective Flaker was employed by the Barberton police department at the time of the 1998 incident, and had conducted this rape investigation. Detective Flaker's testimony expounded on the facts of this case, adding that Mr. McAdory had also "rubbed her vagina with his hand, [and] then inserted his penis into her." He also testified that during his investigative interview of Mr. McAdory, Mr. McAdory had denied raping or inserting himself into this witness. During the direct examination of Detective Flaker, the State introduced a certified copy of a journal entry of Mr. McAdory's conviction for rape based on this incident.
{¶ 22} A second victim-witness testified on behalf of the State. She testified that Mr. McAdory had raped her in July 1991, when she was 13 years old. The witness testified that she had met Mr. McAdory at her brother's apartment, at which point Mr. McAdory inquired into her age and subsequently misrepresented himself to be only 16 years old. She testified that later the same day, Mr. McAdory invited the witness to his apartment, where they watched television together, and "talked about kid stuff, different videos, [and] things like that." She testified that he later picked her up and "forc[ed] intercourse on [her.]" Additionally, the witness testified that after the incident Mr. McAdory prevented her from leaving without first kissing him. The witness testified that when she returned to Mr. McAdory's apartment later that evening with her mother and sister to show them where the incident occurred, Mr. McAdory denied to her mother and sister that the incident occurred, and stated that he did not even know the witness.
{¶ 23} Detective Ronald Perella, who had investigated this case, also testified. Detective Perella testified that the witness had met Mr. McAdory through a relative, and that Mr. McAdory had passed himself off as a 14 year-old to the witness. He also testified that Mr. McAdory had taken off the witness's pants and underwear and "forcibly entered her vaginally" with his penis. During his testimony, the State introduced a certified copy of the journal entry reflecting Mr. McAdory's conviction for a sex crime involving a child based on this incident.
{¶ 24} Finally, a third victim-witness testified on behalf of the State. The witness testified that she knew Mr. McAdory through his younger sister, and that he had told his sister that he thought the witness was "cute." She further testified that whenever he answered the phone when she would call to speak with his sister, that he would start conversations with her. The witness also testified that the incident occurred in 1992 when she was 12 years old. She testified that on the day of the incident, Mr. McAdory asked if he could come to her house, but that she did not agree to him coming over her house. She testified that he showed up anyway, and that she let him in because he was her friend's brother and that therefore she did not think there would be a problem. She testified that after he entered her house he asked her for a hug, kissed her on the cheek and lips, told her that she was beautiful, and then suggested that they lay down on the couch together to watch television. She further testified that he then grabbed her, put her on her back, laid on top of her, and pulled down her shorts. She testified that he then inserted his penis into her vagina. The witness testified that after he was finished with her, he stated that "[she] was the best girlfriend that he ever had."
{¶ 25} Additionally, the third victim-witness testified that a second incident involving her and Mr. McAdory occurred a few weeks later. She testified that she went over to Mr. McAdory's house to play with his sister, but that when she arrived no one except Mr. McAdory and a friend of his were present. She further testified that Mr. McAdory said that his sister would be home soon, and thereafter took her upstairs and showed her his sister's and mother's rooms. She testified that while in his mother's room, Mr. McAdory pushed her down on the bed, climbed on top of her, and sat on her chest. She testified that he pulled out his penis and attempted to have her perform fellatio on him. She also testified that as she tried to push him off of her, he tried to hold her arms down.
{¶ 26} Detective Lewis Hayslip testified that he had investigated the incidents concerning the third witness on behalf of the Akron Police Department. Detective Hayslip testified that Mr. McAdory was charged with three counts of rape, and that Mr. McAdory pled guilty to two counts of gross sexual imposition for this incident. During Detective Hayslip's testimony, the State introduced a certified copy of a journal entry reflecting Mr. McAdory's conviction for these incidents.
{¶ 27} Mr. McAdory argues in support of his third assignment of error, that, pursuant to Evid.R. 609, the use of evidence of a prior conviction of the accused, other than for the purpose of attacking the credibility of a witness, is prohibited. However, Mr. McAdory's application of Evid.R. 609 to the facts of this case is incorrect. Evid.R. 609 provides, that, when attacking the credibility of a witness, certain prior convictions of the accused or a witness may be introduced into evidence, subject to certain limitations as set forth in that rule. In the instant case, evidence of these prior convictions was introduced on direct examination, and not in the process of impeaching these witnesses. As discussed supra in our analysis of Mr. McAdory's first and second assignments of error, evidence of the prior crimes was offered as evidence of prior sexual acts performed by Mr. McAdory in accordance with Evid.R. 404(B). See Evid.R. 404(B) and R.C.
{¶ 28} The evidence of these other acts clearly demonstrates a unique, identifiable plan of criminal activity that is applicable to Mr. McAdory with respect to the incident in the instant case. See Lowe,
{¶ 29} Based upon the foregoing, we conclude that the evidence of other acts and the corresponding convictions introduced by the State in their case-in-chief was properly admitted as probative of the factors articulated in R.C.
{¶ 30} In his fourth assignment of error, Mr. McAdory contends that he was denied his rights to due process and a fair trial when the State introduced the testimony of the individual investigating detectives regarding the similarity of each of these prior sexual conduct cases to the instant case. We disagree.
{¶ 31} Mr. McAdory oddly supports this assignment of error by citing to a line of cases which state the general rule, that, when a witness is cross-examined and a conviction is being introduced to impeach the credibility of this witness, a trial court may limit the questioning to the "name of the crime, the time and place of conviction and the punishment imposed[.]"State v. Amburgey (1987),
{¶ 32} First, we point out that the State's introduction of evidence of Mr. McAdory's prior convictions was brought out on direct examination, not on cross-examination. Therefore,Amburgey and the cases which state this general rule with respect to cross-examinations have no application to the instant case and do not serve to support Mr. McAdory's fourth assignment of error. Second, an appellant bears the burden of affirmatively demonstrating the error on appeal. Angle v. W. Res. Mut. Ins. (Sept. 16, 1998), 9th Dist. No. 2729-M; Frecska v. Frecska (Oct. 1, 1997), 9th Dist. No. 96CA0086. Particularly, an appellant must provide citations to authorities supporting the arguments in his brief, as required by App.R. (16)(A)(7) and Loc.R. 7(A)(6). Angle, supra; Frecska, supra. As Mr. McAdory has failed to provide any other citations to authorities to support his fourth assignment of error, Mr. McAdory has failed to meet his burden of demonstrating this error. See Angle, supra;Frecska, supra.
{¶ 33} We reiterate that the admission of evidence is within the sound discretion of the trial court. See Ditzler, supra. Furthermore, any comparisons between Mr. McAdory's prior acts and the incident at issue in this case are merely cumulative in nature. Furthermore, the testimony of each investigator as to the similarities simply serves as an exercise of the analytical comparison that necessarily occurs each time that such similar acts are properly admitted into evidence. That is, such a comparison is inherent in the process of establishing a unique pattern of activity to prove the identity of the perpetrator. SeeLowe,
{¶ 34} In his fifth assignment of error, Mr. McAdory avers that it was error for Detective Benson to read into the record verbatim, during his deposition, his notes made during his interview with Mr. McAdory on June 5, 2002. Specifically, Mr. McAdory claims that the reading into evidence of these notes denied him of his rights to due process and a fair trial.2
{¶ 35} Initially, we must address a major procedural deficiency surrounding the presentation of the videotape deposition in this case, which ultimately inhibits our review of the merits of Mr. McAdory's fifth assignment of error. The videotape, and the accompanying written transcript of the videotape, both lacked the required authentication.
{¶ 36} Crim.R. 15(e) provides that depositions in criminal cases are to be taken as in civil cases. Civ.R. 40 states that testimony may be presented at trial by video, but that the presentation of testimony at trial by video is subject to the Rules of Superintendence for the Courts of Ohio. The Superintendence Rules were adopted by the Supreme Court of Ohio pursuant to the general superintendence power conferred upon the Court by Article
{¶ 37} Superintendence Rule 13 governs videotaped testimony and evidence. Sup.R. 13(A) mandates that a videotape deposition be accompanied by a certification. Specifically, Sup.R. 13(A) provides the following:
"(8) Certification of original videotape deposition. The officer before whom the videotape deposition is taken shall cause a written certification to be attached to the original videotape. The certification shall state that the witness was fully sworn or affirmed by the officer and that the videotape is a true record of the testimony given by the witness. If the witness has not waived his or her right to a showing and examination of the videotape deposition, the witness shall also sign the certification.
"When an officer makes a copy or a transcription of the videotape deposition in any medium, he or she shall attach a written certification to the copy or transcription. The certification shall state that the copy is a true record of the videotape testimony of the witness.
"(9) Certification of edited videotape depositions. The officer who edits the original videotape deposition shall attach a written certification to the edited copy of the videotape deposition. The certification shall state that the editing complies with the rulings of the court and that the original videotape has not been affected by the editing process." Sup.R. 13(A)(8)-(9).
{¶ 38} In the instant case, the trial judge stated on the record immediately before the playing of the videotape to the jury, that the judge had made her evidentiary rulings on a written transcript of the deposition testimony provided to the judge. The judge stated that she then provided a technician with the evidentiary rulings, and that an edited version of the videotape testimony that reflected the rulings was prepared. The transcript indicates that the videotape was then played to the jury. The judge thereafter asked the prosecution and the defense whether they verified that the video and audio as shown the jury corresponded to the court's evidentiary rulings on the written transcript. The prosecution answered this question in the affirmative; the defense, however, asked for a side bar with the court, and a discussion was had off the record. The court also stated that it wanted the record to reflect that the audio deletions were accompanied by "appropriate video deletions."
{¶ 39} A videotape of Detective Benson's deposition, which we presume is the videotape played to the jury at trial, was filed as an exhibit after the commencement of trial. However, there appears no where in the record, or attached to the videotape, any written certification stipulating to the conformity of the edited videotape to the trial court's rulings on the objections raised at the deposition. As such, the videotape was not properly authenticated pursuant to Sup.R. 13(A)(9).
{¶ 40} Furthermore, we do not find in the record any sort of stipulation by the parties which demonstrates that the parties agreed that the videotape played to the jury was an accurate reflection of the court's rulings. While the transcript of the trial proceedings indicates that the court requested that each party verify the accuracy of the videotape, the transcript only reveals the State's stipulation as to its accuracy. The trial transcript shows that Mr. McAdory's counsel requested a side bar with the court after the State's stipulation. However, this side bar was not recorded, and the transcript does not otherwise reflect the defense counsel's comments, if any were in fact made, as to the accuracy of the videotape.
{¶ 41} A written transcript of the deposition videotape was also filed as an exhibit with the court. This written transcript does possess a certification which verifies that the written transcript itself is a true and correct transcription of Detective Benson's testimony. However, throughout the written transcript we find, in the margins next to the objections noted throughout the testimony, what appear to be rulings on the objections, written in blue ink. The record does not contain any sort of documentation serving to authenticate these rulings as those made by the trial court.
{¶ 42} Because Mr. McAdory's fifth assignment of error is predicated upon evidence which was not properly certified, we cannot consider the evidence. We do not reach the merits of Mr. McAdory's fifth assignment of error. Accordingly, Mr. McAdory's fifth assignment of error is overruled.
Judgment affirmed.
Slaby, P.J. and Baird, J. concur.
