THE STATE OF OHIO, APPELLANT, v. MORRIS, APPELLEE.
No. 2010-1842
Supreme Court of Ohio
Submitted November 1, 2011—Decided June 5, 2012.
132 Ohio St.3d 337, 2012-Ohio-2407
{¶ 30} We now hold that when the evidence to be considered is in the court‘s record, a party need not have moved for directed verdict or filed a motion for a new trial or for JNOV to obtain appellate review of the weight of the evidence.
III. Conclusion
{¶ 31} Reversal on the manifest weight of the evidence and remand for a new trial are not to be taken lightly. Nevertheless, we express no thought on whether the court of appeals should reverse the judgment and grant a new trial in this case. It may be that the dissenting judge believes that the weight of the evidence supports the jury‘s verdict, and in that event, the verdict will be affirmed again. We simply remand for consideration of the issue based upon the appropriate standard.
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and LUNDBERG STRATTON, O‘DONNELL, CUPP, and MCGEE BROWN, JJ., concur.
PFEIFER, J., dissents and would dismiss the appeal as having been improvidently accepted.
Spetnagel & McMahon and Thomas M. Spetnagel; and Bender Law Offices and Stanley C. Bender, for appellee.
Gallagher, Gams, Pryor, Tallan & Littrell, L.L.P., M. Jason Founds, and Mark H. Gams; and Mann & Preston, L.L.P., and James L. Mann, for appellant.
Gallagher Sharp and Timothy J. Fitzgerald, urging reversal for amicus curiae, Ohio Association of Civil Trial Attorneys.
{¶ 1} We are asked to determine the proper standard of review that an appellate court is to apply when reviewing an assignment of error claiming that the trial court improperly admitted evidence of other acts to prove the character of a person in order to show that the person acted in conformity therewith, in violation of
I. Background
{¶ 2} Defendant, Carl Morris, was convicted by a jury of two counts of rape involving a minor. Defendant appealed, and one of his assigned errors asserted that the trial court had improperly allowed the state to introduce evidence of his “other * * * acts to show proof of [his] character in violation of Rules of Evidence 404(B) and 403.” Defendant pointed to several instances of other-acts testimony that the trial court admitted over defendant‘s objection.
{¶ 3} The first portion of challenged testimony was the state‘s general questioning of the victim‘s mother about her sexual relationship with defendant. Over a continuing objection to the line of inquiry, the trial court allowed the testimony because “it could be relevant.”
{¶ 4} The second portion of challenged testimony involved more specific statements sought by the state from the victim‘s mother about her relationship with defendant. In these statements, the victim‘s mother described defendant‘s reaction when she declined his daily sexual advances: he was verbally and mentally abusive, and he even kicked the dog. The state argued that these
{¶ 5} In the final portion of challenged testimony, the state presented testimony from the adult sister of the victim. The sister testified about an incident in which defendant had grabbed her and made what she interpreted as a sexual proposition. She also stated that when her mother learned of defendant‘s conduct, her mother kicked him out of the house for the night. Defendant‘s counsel objected to this testimony on the basis that it was prejudicial under
{¶ 6} At the end of the trial, the court gave a limiting instruction to the jury. The judge cautioned that evidence of other acts was received for the limited purpose of deciding whether that evidence proved the absence of mistake or accident, or the defendant‘s motive, opportunity, intent or purpose, preparation, or plan to commit the offense charged, or knowledge of circumstances surrounding the offense charged.
{¶ 7} In his merit brief to the appellate court, defendant contended that the trial court abused its discretion and acted unreasonably when it admitted the state‘s other-acts testimony because none of the incidents described in that testimony had the tendency to prove any of the “enumerated exceptions” admissible for other purposes under
{¶ 8} In its merit brief to the appellate court, the state asserted that the testimony was properly admitted because the challenged testimony did not show defendant‘s character “in order to show action in conformity therewith,”
{¶ 9} A divided appellate court concluded that the trial court improperly admitted other-acts testimony, that the trial court‘s error was not harmless, and that the error materially prejudiced defendant. The court sustained in part defendant‘s assigned error pertaining to the state-proffered other-acts testimony. Finding that its resolution of the foregoing was dispositive of the appeal, the court declared the remaining assignments of error moot, vacated the conviction, and remanded for further proceedings. 2010-Ohio-4282, 2010 WL 3528992.
{¶ 10} Thereafter, the state sought certification of an interdistrict conflict from the appellate court, which the court denied. 2010-Ohio-5682, 2010 WL 4792415. The state further requested en banc reconsideration of the matter, but the appellate court also denied that request in a divided en banc decision. 2010-Ohio-5973, 2010 WL 4968633. We initially declined the state‘s discretionary appeal but accepted it on reconsideration. 127 Ohio St.3d 1533, 2011-Ohio-376, 940 N.E.2d 986; 128 Ohio St.3d 1448, 2011-Ohio-1618, 944 N.E.2d 697.
II. Analysis: Standard of review for appeals in which a trial court‘s decision to admit other-acts evidence is challenged
{¶ 11} The general principle that guides admission of evidence is that “[a]ll relevant evidence is admissible * * *”
{¶ 12} Another exception to the principle that all relevant evidence is admissible is
{¶ 13}
{¶ 15} In its review of this matter, the appellate court concluded that two portions of the state‘s other-acts testimony did not meet the substantive, legal requirements for admissibility under
{¶ 16} In reaching its conclusions, the appellate court reviewed defendant‘s assigned error under a de novo standard of review. De novo review is appropriate “where a trial court‘s order is based on an erroneous standard or a misconstruction of the law * * *. In determining a pure question of law, an appellate court may properly substitute its judgment for that of the trial court * * *” Castlebrook, Ltd. v. Dayton Properties Ltd. Partnership, 78 Ohio App.3d 340, 346, 604 N.E.2d 808 (2d Dist. 1992). See also In re A.J.S., 120 Ohio St.3d
{¶ 17} As support for its decision to apply a de novo standard of review, the appellate court relied on Med. Mut. of Ohio v. Schlotterer, 122 Ohio St.3d 181, 2009-Ohio-2496, 909 N.E.2d 1237, ¶ 13. In Schlotterer, we held that although trial court decisions pertaining to discovery orders are generally reviewed under an abuse-of-discretion standard, whether the information sought is confidential and privileged from disclosure under the physician-patient privilege of
{¶ 18} De novo review, however, does not apply to the situation presented in the case now before us. Here, the substantive law under the rule is clear: evidence of other crimes, wrongs, or acts, although not admissible to prove the character of a person in order to show action in conformity therewith, may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The language of
{¶ 19} Moreover, the issue here is the application of that rule to specific evidence that is introduced or sought to be introduced. This is a different issue. Whether specific evidence will be admitted is a matter left to the considerable, but not unlimited, discretion of the trial court. The use of the words “may” and “such as” in the rule suggests that the trial judge has considerable discretion to determine whether the specific evidence is of such a nature that it falls within one of the other purposes for which the evidence may be admitted and, if it does,
{¶ 20} In defendant‘s merit brief to the appellate court, the assigned error was that “[t]he trial court abused its discretion and committed reversible error when it permitted the introduction by the state of other crimes, wrongs, or acts to show proof of appellant‘s character in violation of Rules of Evidence 404(B) and 403.” The question presented by defendant to the appellate court was a review of an evidentiary determination: Did the trial court erroneously admit the state‘s proffered other-acts testimony? Defendant‘s argument was not whether the state‘s proffered other-acts testimony fit, as a matter of law, within an
{¶ 21} Nor have the parties presented for resolution a question of mixed law and fact, where a mixed de novo and abuse-of-discretion standard of review would be appropriate. See, e.g., State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, ¶ 8 (appellate review of a suppression motion); Kokitka v. Ford Motor Co., 73 Ohio St.3d 89, 93, 652 N.E.2d 671 (1995) (appellate review of a jury instruction that contains an incorrect statement of the law).
{¶ 22} Accordingly, trial court decisions regarding the admissibility of other-acts evidence under
III. Conclusion
{¶ 23} Having reviewed the arguments and the record in this case, we conclude that an appellate court is to apply an abuse-of-discretion standard of review when considering an assignment of error that claims that the trial court improperly admitted evidence of other acts to prove the character of a person in order to show action in conformity therewith, in violation of
Judgment reversed and cause remanded.
O‘CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O‘DONNELL, LANZINGER, and MCGEE BROWN, JJ., concur.
Dean Holman, Medina County Prosecuting Attorney, and Matthew Kern, Assistant Prosecuting Attorney, for appellant.
David C. Sheldon, for appellee.
William D. Mason, Cuyahoga County Prosecuting Attorney, and Matthew E. Meyer and Daniel T. Van, Assistant Prosecuting Attorneys, urging reversal for amicus curiae Cuyahoga County Prosecutor‘s Office.
Paul A. Dobson, Wood County Prosecuting Attorney, and David E. Romaker Jr., Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.