*1 not or “enterprise” was redundant for clarification of the term Griffin’s request meaning term. confusing, supplemented because been term could have “enterprise” instruction on the jury An additional States, 938, 945-946, 129 Boyle United U.S. language fashioned from (2009) (an at least requires showing of enterprise L.Ed.2d 1265 S.Ct. (2) (1) associated relationships among those purpose, structural features: three (3) pursue the associates to longevity permit and sufficient enterprise, with Turkette, 576, 583, 101 purpose), or United States (an (1981) “proved by ongoing organiza evidence of an enterprise L.Ed.2d 246 informal, as a tion, the various associates function by formal or and evidence that unit”). given. have continuing instruction on term should been requested also appeals I of the court of and judgment would therefore affirm question negative. answer the in the certified Jr., Attorney,
Mathias H. Heck Kirsten Montgomery County Prosecuting Carley Attorneys, A. Brandt and J. Assistant for Ingram, Prosecuting appellant. Harris, L.L.C., Heckman, Denkewalter, L. Heckman & Darrell Meyer, appellee. Defender,
Timothy Young, Galyardt, Ohio Public and Peter Assistant Public Defender, curiae, for amicus Defend- urging affirmance Office of Ohio Public er. Appellee. Ohio, Appellant, Morris,
The State
remanded
under
other-acts evidence
admitting
its discretion
the trial court abused
404(B)
rape
two counts of
his
trial of Carl M. Morris on
during the
The Evidence at Trial minor rape step- of his Morris with two counts charged The state S.K., 2907.02, felony. a first-degree under R.C. daughter, Testimony ofS.K. that allegedly trial to events at the time of and testified S.K. was 15
4}{¶ mother, half- with her older six or seven when she lived occurred when she was sister, grandmother, and stepfather Morris. She testified to Morris’s card tricks magic tricks that asking thumb, included her to touch his which was covered by a towel. He would then make his turn thumb to Jell-0 and get then hard again. S.K. asserted that Morris’s “thumb” was actually penis. his She testified that Morris began lying by her on the couch masturbating, while he rubbed her thigh. When she in was the first grade, began Morris touching vagina her with his hand. S.K. testified that Morris sexually molested her as many as 30 times time, every and that ejaculated he into a towel. Morris told her not to tell anyone what he doing. S.K. dates, testified that she could not recall all the but recalled two
specific times that Morris raped her. The first occurred on April on the day that her mother went to the hospital. She was A then nine. rape second occurred late October which she recalled because she was watching *3 Halloween older, television show. As grew she she began to realize that Morris’s conduct was improper. When if asked Morris’s actions were ever interrupted,
{¶ 6} S.K. testified that time, one her sister stairs,” came “hurtling down the causing Morris to jump and cover himself. S.K. remembered another incident when she and Morris on were the couch and he had a hand down his pants and the other on her and thigh, her mother came down the stairs silently name, and called out Morris’s which caused him to jump. grandmother After her died in September testified,
{¶ 7} S.K. she rebuffed Morris’s advances and he eventually stopped. Shortly before Christmas 2007, six months after house, Morris moved out of the S.K. told her that parents Morris had raped her.
Testimony Sister ofS.K’s S.K’s sister testified that in 2005 when she was Morris grabbed had her and stated: “You don’t know what I you would do to but your mother would get mad.” Although she believed that Morris’s statement nature, was sexual in off,” she “laughed thinking he was intoxicated. At this point, objected Morris to the line of questioning grounds on the
that it was prejudicial. The 404(B) court admitted the testimony under Evid.R. prove “motive, intent, opportunity, preparation, plan, knowledge, or absence” and offered to give cautionary instruction to the jury prior to jury’s deliberation; accepted defense that offer. S.K’s sister then that testified Morris apologized day, the next explaining that he had been drunk. She confirmed that she had seen Morris drinking night of the incident. She also testified that when she told her incident, mother about the Morris was kicked out of the house for a day. Finally, the sister testified that although Morris and S.K. uncomforta- together made her feel close, under a seeing them blanket had been ble.
Testimony ’sMother S.Kof tricks magic performed that Morris mother confirmed S.K.’s downstairs, causing both Morris night came that one she family. She testified and went to the bathroom. “real that S.K. quick,” off the sofa jump and S.K. to ok, The mother yes. if was and S.K. said daughter everything asked her She and between S.K. something happening that suspected testified she S.K.’s response. but that she believed Morris Morris, if to have sex with she refused mother also testified S.K’s into a ejaculated that Morris Finally, kicked she testified dog. sometimes
he objected. The trial court they had sex. Morris a towel after tee shirt or the line of objection inquiry objection, permitted continuing but overruled his and S.K’s mother. The state relationship between Morris the sexual regarding both S.K. and in this behavior with allegedly engaged Morris argued because other acts of mother, operandi, his and knowledge, it was evidence of “modus her and admitted this evidence agreed trial with the state evidence.” 404(B). under Evid.R. father testifying shortly Christmas she S.K’s before S.K., stated that she molestation of S.K.’s mother told of Morris’s sexual
were head pulling like was red and her upset. “never that. She was so She saw [S.K.] crying.” Dr. Keck Testimony of *4 Keck, during a testified that treatment with Gregory psychologist, Dr. 13}
{¶ also Dr. sexually by that abused Morris. She told him S.K. stated she had been his trick he used a towel to cover “thumb.” magic Keck about Morris’s which not certain although patient Keck that he could be Dr. testified truth, he no to S.K’s assertions telling regarding had reason disbelieve pedophiles tricks is a method that magic Morris. Dr. Keck testified use of activity. for sexual groom use to their victims
Prosecutor’s Statements proposition- discussed Morris’s During closing argument, prosecutor sister, that she was
ing stating S.K’s see, [Morris], too, You she for too old I don’t know. maybe smart [t]oo * * * wrong you would know what’s but see young. looked She pretty drunk, if you when he would be want even when his inhibitions were down about, this, on if you little there will an instruction to bit be know want to know a little bit about his motives and his intent and his intent for * * victim, just look at how treated *. stepdaughter he his other added.) (Emphasis closing, his defense propositioning counsel addressed Morris’s by saying, you anything
S.K’s sister “Did hear about ever sexually [Morris] Later, on to coming many years? Absolutely her over the course of not.” he stated: “It’s easy particular say isolate theme within a context and particular that this is further of somebody who would in sexual molesta- engage tion.” rebuttal, In his the prosecutor being referred to the sister as the victim
of a by “sexual come-on” Morris. Jury Instruction concluded, closing After the arguments judge the trial gave jury the
following instruction:
Evidence received about the commission of acts other than the offense with which the charged Defendant in this trial. The evidence was only received, received for a limited purpose. It was not you may not it, consider to prove the character of the Defendant in order to show he acted or in conformity accordance with that you character. If find that the evidence of other crimes or acts is true and that the Defendant it, you may committed consider that evidence only purpose deciding whether it proves accident, the absence of mistake or or the motive, Defendant’s opportunity, intent or purpose, preparation plan or commit the offense charged this trial or knowledge or circumstances surrounding the charged offense in this trial identity or the of the person who committed the offense this trial.
That evidence cannot any be considered for purpose. The jury convicted Morris of both counts of rape. Appeal
Procedure on First Appellate Review appeal, On Morris argued proposition evidence and the evidence 404(B). *5 he kicked the dog were admitted in contravention of Evid.R. The
court of
in a
appeals
two-to-one decision held that
the evidence was not
motive,
prove
intent,
admissible to
opportunity,
preparation, plan, knowledge,
identity, or absence of mistake or accident and that
the trial court
in
erred
¶
admitting
court no excluded because had should have been out of sexual frustration dog only in was intended to show fact at the case and any issue relevance court also said that the The aggressive. character as mean and defendant’s excluded be- from sister should have been testimony S.K.’s sexual-proposition a a part the other act was of did not describe how challenged testimony the cause involving charges the criminal but instead described criminal transaction single convictions, remanding It reversed Morris’s incident. therefore wholly unrelated ¶ trial. at 44. the case for a new Id that “the state’s which state asserted accepted appeal, We novo standard of review to the admissibili- applying
court of
erred
de
appeals
that of
trial
judgment
and substituted its own
ty of ‘other acts’ evidence
1448,
Second
Review
remand,
An
appeals again
On
the court
reversed the conviction.
20}
{¶
trial
by
stated that the
court had abused its discretion
opinion
Judge Dickinson
admitting
kick-the-dog
evidence and the
evidence. 2012-Ohio-
proposition
¶
Quoting
Bayless,
44.
this court’s decision
N.E.2d
(1976),
on
grounds,
reviewing
appellate
erroneous admission of
court should
allegedly
analyze
supports
substantial other evidence
the verdict.” 136 Ohio St.3d
1406,
Legal Harmless Error of harmless error based distinguish the standard review parties by are or nonconstitutional rights
on whether the
affected
the error
constitutional
*6
404(B) evidence
of Evid.R.
state
admission
rights.
argues
that the
therefore
right
of a constitutional
does not involve the violation
Webb, 70
set out in State v.
harmless-error standard of review
nonconstitutional
325, 335,
(1994),
held that nonconstitu-
applies.
N.E.2d 1023
Webb
Ohio St.3d
guilty
support
if
other evidence to
tional error is harmless
there is substantial
hand,
admitted Evid.R.
erroneously
Morris
that the
argues
verdict. On the other
404(B)
trial, requiring application
to a fair
right
violated his
prejudicially
in
standard of review set out
of the constitutional harmless-error
which held
forgive distinguish nonconstitutional rule asks whether affected are rights, rights what if substantial important question happens “substantial.” And the second is that a or a rights every requires are affected. Not conviction be vacated trial granted. new R.C. 2945.83 states: aside,
No motion for a trial or nor shall granted new shall be verdict set any any of conviction reversed in court because of: judgment be
(C) The admission or or for the rejection any against evidence offered accused on the that the accused was affirmatively appears unless record have been may prejudiced thereby. or added.)
(Emphasis 404(B) improperly issue when so the real And aas result. any prejudice suffered a defendant has at trial is whether admitted may while courts error. And as harmless not, may disregarded be If the error *7 differ, may they that ways language and use in a number of prejudice determine and the on the verdict evidence had offending that the impact on the focus both on the verdict and impact error’s Both the remaining evidence. strength of the review. appellate on must be considered remaining evidence of the weight the Law Ohio Case on law is inconsistent Ohio position with the state’s disagree We
{¶ 26}
404(B)
singular
a
evidence is
of Evid.R.
Erroneous admission
harmless error.
crimes,
other
a
has committed
evidence that
defendant
“Prosecution
problem.
generally
on trial is not
for which he is
of the offense
wrongs
independent
or acts
for crime or that
has a propensity
that the defendant
to demonstrate
admissible
Mann,
v.
19 Ohio St.3d
the other acts.” State
conformity
is in
with
his character
question
is
(1985),
syllabus.
one of the
34,
paragraph
was or 2945.83(C). Abrams, v. 39 Ohio St.2d 450, Compare State quoting N.E.2d R.C. (1974) (same improper judge- 53, 56, considering requirement N.E.2d 823 313 communications). jury that the error was not Second, must declare a belief appellate an Id.; Crawford; Chapman California, doubt. beyond
harmless
reasonable
(1967);
California,
395
18,
824,
Harrington
705
L.Ed.2d
386 U.S.
87 S.Ct.
(1969);
48 Ohio St.2d
Bayless,
State v.
23 L.Ed.2d
U.S.
89 S.Ct.
911, 98
(1976),
part
grounds,
vacated in
on other
from the record and then look to In a case with remaining evidence. “ testimony, admission of we stated that ‘the improper privileged spousal eases where must involve either imposition appropriate harmless error evidence of or some other the error did not overwhelming guilt indicia ” Rahman, 146, 151, contribute to the conviction.’ 28 Ohio St.3d (1986), N.E.2d 401 quoting Ferguson, State v. evidence, cautioned, fn. But in reviewing we “We remaining
are also mindful that our role review of this not to sit as upon supreme ease is fact, trier but rather to assess the of this admitted impact erroneously on testimony jury.” Id. at fn. 4. Here, the lead of the Ninth District opinion Appeals Court considered prejudice
both the to Morris It remaining and the evidence. determined that the 404(B) trial court erroneously inflammatory had admitted evidence in a evidence, case that was not no strong. physical There was and there were S.K., questions regarding credibility of Morris’s the main stepdaughter Furthermore, witness. opinion emphasized repeatedly the state had referred to the closing argument. its These statements *8 highlighted jury. were thus for the Given the weakness of the evidence that remained, the deemed that a new trial opinion necessary was because the court could not a beyond find reasonable doubt that the evidence had no only remedy effect. The a prejudice the was new trial. We ourselves have considered that the of a prosecutor may actions
combine with an
In
evidentiary
greater
error to cause
a
case in
impact.
capital
which we vacated a death sentence and
for resentencing
remanded the case
2929.06,
pursuant
to
the trial court
gruesome
R.C.
had allowed
slides to be
admitted into
during
guilt
evidence
the
phase.
Thompson,
State
33 Ohio St.3d
(1987).
unaffected,
phase impermissible. entreaty jury [H]is the should remember the slides could have had no than other effect to cause the jurors to re-experience outrage they the horror and must have felt upon viewing the slides earlier in the trial. appeal This later use the slides to jurors’ to the emotions prejudice against appellant and to them the is grounds for reversal.
Id. words, may blatant a prejudice strong override even case and noted, however, a new trial. As an
require improper evidentiary admission under 404(B) when, on review after the tainted may be harmless error deemed Williams, removed, overwhelming. remaining evidence is State evidence is the 395 U.S. at quoting Harrington, 6 Ohio St.3d 1726, 23 L.Ed.2d The Webb Case “[njonconstitutional error is the statement upon The state relies support the verdict.” guilty if there is other evidence substantial earlier, Webb, 335, 638 1023. As indicated both 70 Ohio N.E.2d St.3d (the how measure of prejudice
the nature of the error and the
to defendant
verdict)
judges
review deter
important. Appellate
upon
are
affected
trial
mine
issues and
which
errors are harmless and which instead
these
decide
used
remedy
Although
language
by
of reversal and new trial.
necessitate
is,
That
may vary,
principles
the courts
themselves are clear:
technical error
52(A);
will
will
under
structural error
result
automatic
ignored
be
Crim.R.
Fisher,
127,
Conclusion Ninth twice District has reviewed the record and held judgment We improperly evidence was admitted. affirm the appeals trial. vacating granting conviction new
Judgment affirmed. C.J., O’Neill, JJ., O’ConnoR, and Pfeifer and concur. FRENCH, JJ.,
O’Donnell, Kennedy, and dissent. J., dissenting. O’Donnell, I Respectfully, dissent. parties The of whether of here seek determination the admission {¶ 36} acts in this case is a constitutional or nonconstitutional error and to majority, clarification as of review. The appropriate appellate standard my view, conflates the control this case with standards that principles apply
409 constitutional federally guaranteed fails to an accused when the state accord by jurors in this credibility determinations made right, second-guesses case. motive, opportu- to of proof acts be admitted show may Other identity, of mistake or intent, plan, knowledge, or absence
nity, preparation, accused accident, the character of an order prove but cannot be offered to 404(B) and therewith. conformity that the accused acted in See show R.C. 2945.59. 52(A) error, defect, or variance provides: “Any irregularity, Crim.R. Similarly, Evid.R. not substantial shall be rights disregarded.”
which does
affect
“[ejrror
103(A)
ruling
not
which admits
may
predicated upon
be
provides
of
is affected” and the
right
party
or excludes evidence unless a substantial
or
timely objected
proof.
made an offer of
party
Rule on Harmless Error
Ohio
Moyer
the rule
review harmless
explained
appellate
Chief Justice
error this N.E.2d Perry, State 643: court, an objected appellate the defendant to an error in the trial has
[I]f
court reviews the
under the
standard
Crim.R.
“harmless error”
52(A)
standard
more
to the defendant.”
significantly
favorable
Unit-
—“a
(C.A.4, 2003),
rule,
F.3d
ed States Curbelo
286. Under
bears
that the error did not
government
demonstrating
the burden
Olano,
rights
v.]
affect the substantial
of the defendant.
States
[United
[725]
(Emphasis
rights
This court has
that to affect
substantial
an
specified
earlier
{¶ “
accused,
must
prejudicial:
‘the error
have been
It must have affected the
added.)”
Fisher,
(Emphasis
State v.
proceedings.’
[trial]
outcome
127,
establish
52(A)
likely than not the error
to
that more
demonstrate
require
prosecution
(2013);
Herbel,
Harmless Error 824, 17 However, California, Chapman rule is limited clarified that a state harmless error L.Ed.2d 705 the court of an rights the error violates the federal constitutional and does not control when accused: course, is, a question a harmless-error rule of state application of state * * * or state law. only procedure
where it involves errors of state for crime should stand when a State has failed Whether a conviction much a every bit as constitutionally guaranteed rights accord federal them- particular provisions as what federal constitutional question federal mean, denied. they what and whether have been they guarantee, selves a constitutional error to beneficiary ruling, “required] its not contribute complained a doubt that the error did prove beyond reasonable obtained,” a error can and it held that “before federal constitutional to the verdict harmless, that it court must be able to declare belief be held Eighth Id. at 24. And as the Circuit Court reasonable doubt.” noted, a stricter test than imposes has the reasonable-doubt standard Appeals rights. constitutional United evidentiary errors do not affect applied Cir.1994). (8th DeAngelo, 13 F.3d States Thus, view, my preserved the law at issue here is well-defined. When or law and does not affect question procedure arises from a of state state *11 52(A) and the error is right, applies, constitutional Crim.R. federally guaranteed than not that the likely if that it is more the state can demonstrate But when a error arises preserved not the outcome of the trial. error did affect right, constitutional federally guaranteed the state’s failure to accord a from controls, that the the state must reasonable doubt Chapman prove and to verdict. guilty error did not contribute the has, occasion, misapplied on these Rather than admit that this court error, nonconstitutional Chapman and relied on the standard to review
rules
First,
require
it seems to
precedent.
to reconcile our case
majority purports
record, majority
“affirmatively
on the
prejudice
appears”
accused to show
¶
error,
error;
a claim of harmless
opinion,
reviewing plain
the standard
however,
prejudice
affirmatively appear
the state to show that
does not
requires
118,
standards of review whether constitutional or nonconstitutional apply They only errors are harmless. maintain that we need determine whether the erroneous admission of other acts evidence is a constitutional or a nonconstitu- corresponding tional error and then standard. apply Review Other Acts Evidence States, Dowling v. United 493 U.S. L.Ed.2d (1990), Frederiksted, Croix, Virgin a masked man entered a home St. Islands, victim, at occupant gunpoint. During struggle, and robbed the him Henry, Dowling. Vena unmasked the intruder and later identified as Rueben assault, However, burglary, robbery, and jury acquitted Dowling attempted him for a bank weapons government prosecuted offenses. The federal then mask, a man a similar and the district court robbery perpetrated by wearing identify to permitted Henry testify regarding robbery her home order determined Dowling Appeals as the bank robber. The Third Circuit Court evidence, other acts and permitting the trial court had erred error, stringent the more reviewing “explicitly apply for harmless declined standard, Chapman California, see because, according to the applicable
L.Ed.2d 705 to constitutional errors evidentiary not of constitu- court, merely Court’s mistake was the District at 346-347. Dowling tional dimension.” Court, “the Dowling argued that Third Supreme to the appeal On Henry’s testimony did not it found that admission wrong
Circuit was when apply Chapman declined to the Constitution and therefore offend Califor- nia, Id. standard.” at 347. supra, harmless-error affirmed argument not Supreme accept Court did was constitu-
conviction, concluding Henry’s testimony that “the admission of Ms. *12 the harmless-error applied tional and the Court of therefore correct Appeals rejected argument at court first the that the Double standard.” Id. 354. The from the acts evidence. precluded government eliciting Clause the Jeopardy introduction this evidence Id. at 348. It then considered whether “the of ” it the due test of fairness.’ process unconstitutional because faded ‘fundamental Id. that recognized at 352. The in introduction circumstances like involved here has of evidence those force to jury unfairly spend or the defendant potential prejudice at trial. considered the first The money relitigating
time matters however, it is to deal for question, acceptable potential is whether with through nonconstitutional like the Federal Rules of Evi- abuse sources dence, or introduction of is so type extremely whether the justice.” unfair that its “fundamental conceptions admission violates Lovasco, 783, 790, 2044, 2048, 431 97 52 United States v. U.S. (1977). L.Ed.2d 752
(Footnote omitted.) Henry’s The that Supreme Id. 352. Court determined fairness, testimony principles did not violate explaining fundamental authority potentially prejudicial adequately district court’s to exclude risk will on jury addressed the convict the accused the basis of inferences drawn from other to receive a fair permitted Dowling acts evidence therefore trial. demonstrates, the trial Dowling may bootstrap any As accused not error in right the admission of evidence to the to a fair trial to obtain order scrutiny Thus,
heightened
Chapman requires
constitutional errors.
circuit
federal
courts treat the admission of other acts evidence as nonconstitu-
See,
apply Chapman
e.g.,
tional error and do not
in these
United
circumstances.
(1st
Hicks,
130, 143
Cir.2009);
Corey,
States v.
575 F.3d
United
v.
566
States
F.2d
(2d
(4th
McBride,
Cir.1977);
676
400
432
United States v.
F.3d
Corsmeier,
(6th
Cir.2012);
Cir.2010),
3;
422
fn.
v.
F.3d
United States
King,
v.
States
(7th Cir.2012);
Miller,
United
673 F.3d
United States
794, 803
Bailey,
States v.
(8th
5;
696 F.3d
fn. United
Cir.1994),
F.3d
(10th Cir.2008);
Starr,
761, 765
(9th Cir.2012);
United States
Fed.Appx.
(D.C.Cir.2008).
Johnson,
478, 483
United States
519 F.3d
other acts evidence
Therefore,
admission of
because the erroneous
Constitution,
404(B)
our
the United States
does not violate
violation of Evid.R.
52(A) and
of Crim.R.
requires application
of the record for harmless
review
103(A)
that the other
the state has demonstrated
to determine whether
of the trial. See
than
had no effect on the outcome
likely
more
not
acts evidence
(1995) (“even
where
stepdaughter —did
that Morris
prove
not consider this evidence
jury
could
instructed
character,
jury
that a
follows
presume
and we
conformity
with bad
acted
Williams,
acts evidence. See State
instructions on the use of other
limiting
521,
{¶ 52} a using six-year-old that he a child groomed compelling molestation — hard again— turn and then become trick” to his “thumb” to Jell-0 “magic make In my of time. period her an extended sexually raped and abused and over then that, that Morris kicked view, for the admission of evidence likely it is not but him his adult propositioned to have sex with and when his wife refused dog him of a child guilty rape not have found to be jury would stepdaughter, conclusory statement majority’s vague, I persuaded by under 13. Nor am Majority victim. credibility” of the questions regarding that “there were jurors, made and by is a determination Credibility witnesses opinion, jury’s I would Contrary majority, respect to the province. that is their testimony that victim’s finding case and its credibility determination this verdict is raped that had her. The a doubt Morris beyond reasonable proved kicking dog. about testimony, on that not evidence based in this case is of other acts evidence the admission Accordingly, {¶ 53} and error, appeals of the court judgment I would reverse the and rape. two counts of separate convictions for the reinstate Morris’s J., dissenting. Kennedy, I dissent. Respectfully,
Introduction majority’s reject the categorically as I the state insofar I with agree that to determine applied in the test is consistent that Ohio law position I further is harmless error. other-acts evidence admitted improperly between distinguishes precedent to disavow our majority’s attempt reject adopting while effect harmless error nonconstitutional constitutional and the second harmless-error test as constitutional, doubt” a reasonable “beyond view, this my other-act evidence. erroneously admitted of its test for prong of an evidence to the level of other-acts admission improper elevates the wrongly admission of I hold that would import. of constitutional error error, to settle Ohio order involves a nonconstitutional other-acts test harmless-error law, circuit courts’ nonconstitutional adopt I would the federal States, 328 U.S. forth in Kotteakos v. United originally set action stripping the erroneous “without provides L.Ed. 1557 which substantially “not whole,” if the outcome was an error is harmless from the making I would further hold the error.” Id. at 765. swayed by evidence, of the centrality case-by-case inquiry requires determination below. instructions, factors set forth and other relevant limiting Is Ohio Law Inconsistent law the harmless- majority inconsistency regarding finds no Ohio I disagree. admitted other-acts evidence. analysis improperly standard of the constitutional harmless-error applied This court has 48 Ohio St.2d E.g., Lytle, in some cases. State v.
review
(the
(1976)
that the
possibility
improper-
that there was “no reasonable
court held
conviction,
appellant’s
to the
testimony
‘other act’
contributed
ly-admitted
*
* *
doubt”),
beyond
was harmless
reasonable
the error committed
3135,
error was harmless substantial
415
harmless-error
a constitutional
apply
districts
Many
appellate
Ohio
admitted other-acts
improperly
determining
review in
standard of
Williams,
Dist. Hamilton Nos. C-060631
v.
1st
E.g.,
is harmless.
State
¶
Dotson,
3036611, 38, 39;
v.
2d
C-060668,
believe that Ohio law is inconsistent rectified. inconsistency must be admitted other-acts evidence and Recognizes The Law a Distinction Between Constitutional Error
and Nonconstitutional Harmless determination, majority ignores its the distinction reaching that the constitutional and nonconstitutional harmless error on the basis between 52(A) language expressly recognize Crim.R. 52 fails to the distinction. Crim.R. * * * be “[a]ny rights does state that which does not affect substantial shall However, recognizes well-settled case law a distinction between disregarded.” the harmless-error employing constitutional and nonconstitutional errors when imposes The distinction is because it different standards analysis. important depending upon review the nature of the error involved. if doubt appears “beyond
A constitutional error is harmless
reasonable
that the error
of did not contribute to the verdict obtained.”
complained
18, 24,
824, 828,
(Citations
States
United
constitutional
between
the distinction
recognized
court has also
This
Powell,
St.3d
v.
132 Ohio
See State
Ohio.
harmless errors
nonconstitutional
¶
majority improp-
Accordingly,
harmless, appellate holds that majority remaining of the strength and the evidence on the verdict offending impact Majority from the record.” is removed after the tainted evidence evidence Is the courts must first ask: majority, to the According opinion syllabus. determine, improp- is, reviewing court must If it then the prejudicial? aside, beyond a is convinced erly admitted other-acts evidence the defendant. overwhelming against there is reasonable doubt distinction, the rejecting the Despite purportedly constitutional/nonconstitutional constitutional harmless-error adopted the majority apparently has nevertheless (11th Estrella, 822, 825 Fed.Appx. of review. See United States standard violation, Cir.2013) a constitutional (“Moreover, if Estrella could establish even robbery of Detective Lebid concerning the admitting error in his comments any of the overwhelm- light a reasonable doubt would have been harmless guilt”). evidence of Estrella’s ing Error Is Nonconstitutional Admitted Other-Acts Evidence
Improperly
erroneously
has
elevated
majority’s holding
I
believe
of constitutional error for
evidence to the status
admission of other-acts
that im
Although
recognize
courts
of harmless-error determination.
purposes
in a violation of the defen
may result
admission of other-acts evidence
proper
trial,
of the evidence
a fair
the error
the admission
right
dant’s constitutional
404(B).
Wegmann,
generally
Evid.R.
See
from a violation of
originates
Therefore,
of a
1-06-98,
dence is harmless. Under
error is harmless
there is substantial other
Therefore,
Webb,
to support
the verdict.
under
a court would not
as to
inquire
improperly
whether
admitted other-acts evidence affected the
case,
yet
outcome of the
precluding
jury
considering
from
whether
defendant acted in
with a
act is
conformity
prior
precisely
purpose
bad
of
404(B).
Nichols,
excluding evidence under Evid.R.
Franklin
State v.
10th Dist.
1998) (the
97APA09-1162,
226430,
5,
No.
1998
*3
of
(May
WL
risk
other-acts
evidence is that the
will use it to
jury
conformity
“infer character and
there-
with”). Therefore,
Webb,
instead of
on
I would look to
relying
the federal
Kotteakos,
nonconstitutional
of
harmless-error standard
review as set out in
328
750,
1239,
Lane,
438,
U.S.
66 S.Ct.
[I]f whole, without stripping erroneous action from the that the judgment error, substantially was not swayed by impossible conclude that rights inquiry merely substantial were not affected. The cannot be result, enough support whether there was from the apart phase rather, so, by affected the error. It is even whether the error itself had so, doubt, If in grave substantial influence. or if one is left the conviction cannot stand.
Id. at 765. Webb, an Unlike which holds that error is harmless if there is substan- verdict,
tial support requires other evidence to Kotteakos courts to consider 418 within context of.the entire on of the trial of the error the outcome
the effect record. Sixth, Seventh, Tenth Circuit Courts First, Fourth, Federal Columbia, have for the District Appeals as as the Court of well
Appeals, standard review nonconstitutional harmless-error the Kotteakos adopted evidence is admitted other-acts determining improperly purpose (1st Cir.1989), Garcia-Rosa, 209, 222 876 F.2d States v. harmless. United States, v. grounds on sub nom. Rivera-Feliciano United vacated (1990); 649 F.3d Byers, 112 United States v. L.Ed.2d 391 (6th Cir.2010), (4th Corsmeier, Cir.2011); F.3d United States (7th Hill, Cir.1990); 3; F.2d 75-76 United States fn. United States (10th Linares, Starr, Cir.2008); and United States Fed.Appx. *17 (D.C.Cir.2004). 941, 952 F.3d circuits, I would the nonconstitution- adopt with these federal Consistent Kotteakos, 750, set forth in 328 U.S. 66 S.Ct.
al standard of review harmless-error determining improperly for the whether admitted purpose 90 L.Ed. 52(A). is harmless error under Crim.R. other-acts evidence review, harmless-error standard of supplies proper While Kotteakos an is determining not courts on what to consider in error it does instruct not, weighed question. or circuits have in on that harmless but some federal (1st Cir.1993), the court stated: Sepulveda, States v. 15 F.3d United for bright-line divining no rule when errors particular There is (or not) jury’s exposure result in a to evidence are are harmless. improper Rather, a determination demands panoramic, case-specific harmlessness inquiry considering, among things, centrality of the tainted material, to which it was uniqueness, prejudicial impact, put its its uses cases, trial, any of the during strengths parties’ the relative that furnish clues to the likelihood that the error affected the telltales resolution of a material issue. factfinder’s Reagan, Fifth Circuit of Appeals And in United States Court 72}
{¶
limiting
‘greatly
a court’s “issuance of
instruction
minimize[s]’
stated
404(b).”
an
posed by
risk of undue
erroneous admission under Rule
prejudice
(5th
Cir.2013),
Crawley,
F.3d
States v.
F.3d
quoting
United
(5th Cir.2008).
Therefore, I
of other-acts
would hold
admission
52(A)
assurance,
if
can
with fair
say,
under Crim.R.
a “court
error
action from the
stripping
all that
without
erroneous
pondering
happened
after
whole,
Kotteakos,
that the judgment
substantially
was not
swayed by the error.”
FRENCH, J., concurs. Holman, Dean County Medina Prosecuting Attorney, Kern, and Matthew A. Assistant Prosecuting Attorney, for appellant. Sheldon,
David C. appellee. Timothy McGinty, Cuyahoga County Prosecuting Attorney, Van, and Daniel Assistant Prosecuting Attorney, urging reversal for amicus curiae Cuyahoga County Prosecuting Attorney’s Office.
John Murphy; Deters, T. Joseph County Hamilton Prosecuting Attorney, Lipman Curran, Rachel Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association. Enquirer, Appellee,
The State ex rel. Cincinnati Appellant. Hunter, Judge,