State v. PlevyakState v. Plevyak
COLLEEN MARY O‘TOOLE, J.
{¶1} James M. Plevyak, II, appeals from the judgment entry of the Trumbull County Court of Common Pleas, sentencing him to nine years imprisonment for his convictions on three counts of gross sexual imposition, following jury trial. He asserts the trial court erred by permitting the state to introduce evidence of other alleged bad acts. Additionally, Plevyak claims that his convictions are against the manifest weight of the evidence. We affirm.
{¶3} Athena R. (“Athena“) is a single mother who lived in Niles, Ohio with her two sons during 2010, the time the events charged occurred. Athena‘s two children are Z.R., the victim in this case, who was nine years old at the time, and J.R. (Z.R.‘s younger brother), who was three. Z.R.‘s grandfather had dated Plevyak‘s mother, Sandra, for several years. Sandra Plevyak frequently babysat Z.R. and J.R. while Athena worked as a waitress.
{¶4} Plevyak, who was 28 years old at the time, often helрed his mother babysit the boys. Appellant spent most of his time with Z.R. in an upstairs bedroom playing video games while his mother babysat J.R. on the first floor. Z.R. testified that Plevyak frequently exposed his penis to Z.R. while they were alone upstairs, and that Plevyak also masturbated in front of him. Plevyak also showed Z.R. pornographic videos and photographs on his cell phone.
{¶5} Eventually, Plevyak began touching Z.R. by putting his hand down Z.R.‘s underwear. Plevyak also bathed Z.R., washing his genital area with his soapy bare hands. Z.R. testified that on one occasion, appellant took off his clothes and got into
{¶6} After a year of these activities, Z.R. told his mother what was occurring. After Z.R. and his mother reported these events to the Niles Police, Plevyak agreed to be interviewed. He admitted giving Z.R. a bath and a shower. Plevyak agreed to take a stipulated polygraph wherein he denied he had engaged in any sexual touching of Z.R.‘s genitals. The polygraph examiner testified Plevyak exhibited signs of deception regarding the question.
{¶7} During the trial held in this matter in February 2013, the state dismissed the count regarding disseminating matter harmful to juveniles. Plevyak was found guilty on three of the four remaining counts of gross sexual imposition. In April 2013, Plevyak was sentenced to three consecutive terms of three years imprisonment. This appeal timely ensued.
{¶8} Plevyak presents two assignments of errors. They read:
{¶9} “[1.] The Trial Court erred, both as a matter of law and as an abuse of discretion, by permitting the Appellee to introduce evidence of other alleged bad acts of Appellant, to the prejudice of the Appellant.
{¶10} “[2.] The Appellant‘s convictions are against the manifest weight of the evidence.”
{¶11} By his first assignment of error, Plevyak argues the trial court committed reversible error, both as a matter of law and under an abuse of discretion standard, by admitting the other acts evidence. Specifically, he alleges the state failed to provide
{¶12}
{¶13} On the morning of trial, Plevyak‘s counsel made an oral motion in liminе to exclude evidence of “other acts” under
{¶14} The assistant prosecutor responded there was no requirement for the state to put defense counsel on notice of its intention to introduce evidence of other acts by Plevyak. The assistant prosecutor argued these оther acts were inextricably interwoven with the other facts in the case, and that failure to describe these acts would prevent the jury from forming a fair and accurate picture of events. The assistant prosecutor also noted that all the information regarding these other acts had been made available to defense counsel under open file discovery.
{¶16} The state asserted at oral argument that
{¶17} Several of these “other acts” involved acts that occurred weeks and months apart from the crimes with which Plevyak was charged. Under
{¶18} The state also averred at oral argument that open file discovery provided Plevyak with knowledge of the “other acts” evidence and this was equivalent to giving him notice of the state‘s intent to use this evidence. Again, we disagree. There is a
{¶19} The federal rule, upon which
{¶20} In the present case Plevyak received notice of the state‘s intent to introduce “other acts” evidence on the morning of trial. Plevyak‘s defense counsel acknowledged he was aware of the other acts evidence from open file discovery, and was not surprised by the state‘s intent to introduce this evidence at trial. As such Plevyak was not prejudiced by the lack of pretrial notice.
{¶21} Further, the Staff Notes to the 2012 Amendment to
{¶22} The notice provision in the federal rules upon which the amendmеnt to
{¶23} Next we turn to Plevyak‘s claim the trial court abused its discretion by allowing evidence of these other acts to be admitted. The decision whether to admit or exclude relevant evidence lies within the discretion of the trial court. Rigby v. Lake Cty., 58 Ohio St.3d 269, 271 (1991). An appellate court will not reverse that decision absent an abuse of discretion and a showing of prejudice. Id. The term “abuse of discretion” is one of art, connoting judgment exercised by a court which neither comports with reason, nor the record. State v. Ferranto, 112 Ohio St. 667, 676-678 (1925). An abuse of discretion may be found when the trial court “applies the wrong legal standard, misapplies the correct legal standard, or relies on clearly erroneous findings of fact.” Thomas v. Cleveland, 176 Ohio App.3d 401, 2008-Ohio-1720, ¶15 (8th Dist.)
{¶24} Evidence an accused committed a crime, other than that for which he or she is on trial, is not аdmissible when its sole purpose is to show the defendant‘s propensity or inclination to commit crime. State v. Curry, 43 Ohio St.2d 66, 68 (1975).
{¶25} Plevyak argues the state could have easily elicited testimony from Z.R. and the other witnesses about only those acts which constituted the crimes charged, and the case still would have made sense to the jury. At the pretrial hearing the assistant prosecutor argued these other acts were “inextricably intertwined” with the conduct of Plevyak and the lack of such evidence would prevent the jury from seeing a fair and accurate picture of the crimes charged. The state‘s position has merit.
{¶26} Evidence of other acts may be admissible to show the background of the crimes with which a defendant is charged, or when the other acts are “‘inextricably related‘” to those crimes. State v. Lowe, 69 Ohio St.3d 527, 531 (1994), quoting Curry, supra, at 73. Z.R. testified that Plevyak would frequently expose his penis to Z.R. while they were alone upstairs; that Plevyak would masturbate in front of him; and that he would put Z.R.‘s hand on his (Plevyak‘s) penis. See State v. Frost, 6th Dist. Lucas Nos. L-06-1142 and L-06-1143, 2007-Ohio-3469, ¶33 (other acts evidence shows that defendant committed similar crimes against the same victim within a period of time near to the crimes charged); State v. Walker, 8th Dist. Cuyahoga No. 79767, 2002 Ohio App. LEXIS 1599, *8 (other acts were inextricably related to the defendant‘s alleged course of conduct and formed a background necessary to give a complete picture of the alleged crime; child victim‘s testimony about previous sexual advances played an
{¶27} Plevyak next argues that the Ohio Supreme Court has instructеd courts to conduct a three step analysis to determine whether other acts evidence is admissible. State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695 ¶19. He claims the trial court failed to conduct the analysis necessary to admit evidence of other acts.
{¶28} “The first step is to consider whether the other acts evidence is relevant to making any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Id. at ¶20 citing
{¶29} As to the first step of the Williams test, Z.R.‘s testimony was relevant because it showed Plevyak‘s actions escalated from exposing himself, to masturbating in front of Z.R., then to touching Z.R.‘s genitalia. Such testimony explains the sequence of еvents leading up to the crimes charged as well as provides evidence regarding one of the elements of the offense: that Plevyak committed these acts for the purpose of sexual gratification.
{¶30} The second step relates to whether the evidence was presented to prove Plevyak‘s character and to show that the conduct was in conformity with that character.
{¶31} Third, we consider whether the probative value of the other acts evidence of Plevyak‘s escalating behavior is substantially outweighed by the danger of unfair prejudice. This evidence was not unduly prejudicial as the trial court instructed the jury it could not be considered to show that appellant had acted in conformity with a character trait. Williams, supra, at ¶24.
{¶32} Further, the state contends any error in admitting the other acts testimony was harmless. We agree. The admission of improper evidence is harmless if the remaining evidence provides overwhelming proof of the defendant‘s guilt. State v. Sage, 31 Ohio St.3d 173, 181 (1987). The testimony of Z.R., even without the other acts evidence, is compelling and credible. The alleged inconsistencies in Z.R.‘s testimony noted by Plevyak mostly relate to the fact that as time went on, Z.R. revealed more details of his experiences with Plevyak. The testimony of Z.R.‘s mother, David Smith, the Children Services caseworker and Daniel Adkins of the Niles Police Department all add credence to Z.R.‘s testimony.
{¶33} Additionally, the testimony of William Evans, the forensic polygraphist who administered the stipulated polygraph to Plevyak was also compelling. Evans testified
{¶34} In this case, the testimony of the victim, his mother, and the other witnesses is sufficient to “overwhelm” any error in admitting the other acts evidence. The first assignment of error is without merit.
{¶35} In his second assignment of error, Plevyak argues his convictions for gross sexual imposition are against the manifest weight of the evidence, as Z.R.‘s recount of Plevyak‘s alleged course of conduct changed over time, becoming more detailed. He further argues there was no evidence presented he committed these acts for personal sexual gratification, one of the elements of the offense.
{¶36} As this court stated in State v. Schlee, 11th Dist. Lake No. 93-L-082, 1994 Ohio App. LEXIS 5862, *13-14 (Dec. 23, 1994):
{¶37} “‘[M]anifest weight’ requires a review of the weight of the evidence presented, not whether the state has offered sufficient evidence on each element of the offense.
{¶38} “‘In determining whether the verdict was against the manifest weight of the evidence, “(* * *) the court reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. (* * *)‘” (Citations omitted.) * * *” (Emphasis sic.)
{¶40} Regarding the manifest weight of the evidence, we note the jury is in the best position to assess the credibility of witnesses. State v. DeHass, 10 Ohio St.2d 230, paragraph one of the syllаbus (1967). Here, the jury chose to believe the state‘s witnesses. That Z.R.‘s testimony in court was more detailed than his initial report to his mother and police is not surprising. Based on the evidence presented we cannot say the jury clearly lost its way in finding Plevyak guilty of gross sexual imposition. Schlee, supra, at *14-15; Thompkins, supra, at 387.
{¶41} Plevyak‘s argument the state failed to introduce evidence he committed his crimes for personal sexual gratification is not a manifest weight argument: it is an argument regarding sufficiency of the evidence. Plevyak is arguing that the state failed to introduce evidence on аn element of the crime. See, e.g., State v. Anthony, 11th Dist. Lake No. 2013-L-021, 2013-Ohio-5652, ¶47. We find the testimony of Z.R., that Plevyak fondled his genitalia, and exposed his own erect penis to the child, to be sufficient evidence from which a jury could find Plevyak committed these crimes for his own sexual gratification.
{¶42} The second assignment of error is without merit.
{¶43} For the foregoing reasons, appellant‘s assignments of error are not well-taken. The judgment of the Trumbull County Court of Common Pleas is affirmed.
THOMAS R. WRIGHT, J., concurs in judgment only.
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TIMOTHY P. CANNON, P.J., concurring in part and concurring in judgment only in part.
{¶44} I concur in the judgment of the majority, affirming the decision оf the trial court. I write separately because I do not agree with the majority‘s analysis under appellant‘s first assignment of error. The majority does not clarify the distinction between the state‘s contention that the evidence of prior misconduct is admissible because it is “inextricably intertwined,” and thereby exempt from the requirements of
{¶45} “Other acts” evidence may be properly admitted either as “inextricably intertwined” with an offense or under
{¶46}
{¶47} When other acts are “inextricably intertwined” with that offense, those acts are said to be intrinsic to the alleged crime. In other words, acts that are “inextricably intertwined” aid understanding by “complet[ing] the story of the crime on trial.” United States v. Siegel, 536 F.3d 306, 316 (4th Cir.2008). “Evidence of other crimes is admissible when evidence of the other crime is so blended or connected with the crime on trial as the proof of one crime incidentally involves the other crime, or explains the circumstances, or tends logically to prove any element of the crime charged.” State v. Long, 64 Ohio App.3d 615, 617 (9th Dist.1989).
{¶49} An example of “inextricably intertwined” еvidence includes the discharge of a weapon in a conviction for felonious possession of a firearm. The court in United States v. Roszkowski, 700 F.3d 50, 56 (1st Cir.2012) stated the following:
It is common ground that evidence of prior bad acts, including a defendant‘s antecedent criminal activities, may not be introduced to prove subsequent ‘action in conformity therewith.’ * * * That prohibition, however, typically refers to evidence that is extrinsic to the crime charged, and is introduced for the purpose of showing villainous propensity. * * * Here, we needn‘t reach the question of propensity; thе fact that [the defendant] discharged his weapon is intrinsic to its felonious possession. That is to say, the evidence comprises part and parcel of the core events undergirding the crime for which he was charged. Thus, the evidence is not ‘other acts’ evidence at all, and, accordingly,
Rule 404(b) is not implicated.
{¶50} In this case, while the other acts show appellant‘s increasingly brazen behavior, they do not tend to prove an element of the crimes charged. As such, I disagree that the other acts evidence is either intrinsic or “inextricably intertwined” with appellant‘s three counts of gross sexual imposition.
{¶51} I also disagree with the majority‘s contention that the notice requirements of
{¶52} I agree with the majority‘s conclusion that the history of conduct between appellant and the victim in this case is admissible under
{¶53}
{¶54}
{¶55} In this case, the record establishes appellant had sufficient notice that the state was seeking to admit other acts evidence that was extrinsic to the offenses charged. The trial court ensurеd there was no unfair surprise by interviewing appellant‘s counsel. Prior to trial, appellant‘s counsel acknowledged he was aware of the information. Further, the evidence was turned over to appellant during the discovery process. As such, there was no undue surprise, and I find there was reasonable notice to appellant of the state‘s plan to introduce other acts evidence under
{¶57} In conclusion, I would hold under appellant‘s first assignment of error that the “other acts” were extrinsic to the crime on trial, that the state gave appellant sufficient notice of its intent to introduce the evidence under
{¶58} For the foregoing reasons, I concur in judgment only with the disposition of appellant‘s first assignment of error. I concur with the judgment and majority opinion regarding appellant‘s second assignment of error.