[Cite as State v. Morris, 2012-Ohio-6151.]


STATE OF OHIO                     )                   IN THE COURT OF APPEALS
                                  )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                         C.A. No.       09CA0022-M

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
CARL M. MORRIS, JR.                                   COURT OF COMMON PLEAS
                                                      COUNTY OF MEDINA, OHIO
        Appellant                                     CASE No.   08CR0408

                                 DECISION AND JOURNAL ENTRY

Dated: December 28, 2012



        DICKINSON, Judge.

                                             INTRODUCTION

        {¶1}     A jury convicted Carl M. Morris Jr. of two counts of raping his stepdaughter, S.K.

According to S.K., Mr. Morris sexually molested her over the course of several years. Mr.

Morris appealed, and this Court reversed his convictions because the trial court prejudiced Mr.

Morris by incorrectly admitting other-act evidence in violation of Rule 404 of the Ohio Rules of

Evidence. State v. Morris, 9th Dist. No. 09CA0022-M, 2010-Ohio-4282, ¶ 44, rev’d, 132 Ohio

St. 3d 337, 2012-Ohio-2407. In reaching that conclusion, this Court applied a de novo standard

of review to consider whether the proffered evidence had a tendency to prove any of the

enumerated permissible purposes for such evidence under Evidence Rule 404(B) and whether

any of those things were of consequence to the determination of the action. Id. at ¶ 13. The

Ohio Supreme Court reversed this Court’s decision and remanded the matter for application of

an abuse-of-discretion standard of review to the first assignment of error and, if necessary, a
                                                2


review of the remaining assignments of error that were mooted by this Court’s reversal of the

convictions. Morris, 2012-Ohio-2407, ¶ 23. This Court reverses Mr. Morris’s convictions

because the trial court abused its discretion by admitting other-act evidence in violation of Rule

404 of the Ohio Rules of Evidence.

                                          BACKGROUND

       {¶2}    When S.K. was in first grade, her mother married Mr. Morris and he moved into

their house to live with S.K., her mother, her grandmother, and her older sister, Sarah.

According to S.K., when she first met Mr. Morris, he would do magic tricks to entertain her. He

would do card tricks, coin tricks, or make his leg “disappear” using a towel. Sarah and the girls’

mother testified that Mr. Morris walked around the house in a towel before and after showering

and would sometimes stop and do magic tricks, like the one involving manipulating the towel to

make it seem as though one of his legs had disappeared.

       {¶3}    S.K. testified that, when she and Mr. Morris were alone, he used to show her a

trick requiring her to feel his thumb covered by a towel across his lap. S.K. was amazed that he

could make his “thumb” turn to Jell-o and then become very hard. She testified that Mr. Morris

later showed her that it was his penis she had been touching behind the towel. According to

S.K., at some point, Mr. Morris started lying on the couch beside her and masturbating while

rubbing her thighs with his other hand.

       {¶4}    S.K. testified that Mr. Morris vaginally raped her at least 10 times between when

she entered second grade and when her grandmother died. S.K. was 13 years old when her

grandmother died. She testified that, after her grandmother died, she started walking away from

Mr. Morris when he would try to touch her. According to S.K., Mr. Morris soon stopped trying.
                                                 3


       {¶5}    S.K. testified that, for the most part, she could not remember the dates of the

events she described, but that, after talking to police, she found she was able to assign dates to

two of the incidents. She testified that Mr. Morris raped her when they were home alone before

taking her to the hospital to visit her mother after surgery. S.K.’s mother testified that she stayed

overnight in a hospital on April 22, 2003, following a hysterectomy. S.K. was nine years old at

that time. S.K. also testified that Mr. Morris raped her sometime between October 20 and

November 1, 2005, when she was 12 years old. She testified that she remembered the date

because Mr. Morris interrupted a Halloween cartoon on television.

       {¶6}    S.K. testified that Mr. Morris never grabbed her, used force, or threatened her;

that he never told her not to tell anyone what he was doing; and that she did not tell anyone about

his behavior until at least four months after he had separated from her mother and moved out of

their house. S.K.’s best friend testified that, about four or five months after Mr. Morris had

moved out of the house, S.K. told her that he had raped her, but did not share any details. Six

months after Mr. Morris had moved out of the house, S.K. told her parents that Mr. Morris had

raped her. They insisted that she repeat the information to the police and to a therapist she had

been seeing. S.K.’s therapist testified that, although he cannot be certain whether a client is

telling the truth, there was no clinical reason to disbelieve S.K.’s account. He further testified

that her description of the magic tricks fit the pattern of something a pedophile would do to

prepare a child for sexual activity.

       {¶7}    At trial, Mr. Morris argued that both S.K. and her mother had reasons to fabricate

the allegations against him. S.K.’s mother testified that, after Mr. Morris moved out, she

suffered financial hardship and lost the house they had purchased together. Although she said

that Mr. Morris had difficulty keeping jobs, she admitted that she could not afford the house
                                                 4


without his help. Mr. Morris also elicited testimony from various witnesses that S.K. first told

her parents that Mr. Morris had raped her in the middle of a dramatic confrontation between her

and her parents regarding something they had seen on her MySpace page. The trial court

excluded the details of the information contained on the page, but S.K. testified that the issue that

provoked her parents’ wrath had nothing to do with Mr. Morris.

       {¶8}    Although neither Sarah nor the girls’ mother testified to ever having seen Mr.

Morris molesting S.K., they both testified to situations that provoked some suspicion regarding

his conduct with S.K. Sarah testified that she once saw Mr. Morris and S.K. “underneath the

blankets” on the couch. Although the two had always been close and it was not uncommon to

see them physically close to each other, it made her uncomfortable on that occasion.

       {¶9}    S.K.’s mother testified that she came downstairs late one night in the spring of

2005 “and both [S.K. and Mr. Morris] jumped off the couch really quick and [S.K.] went and ran

in to the bathroom.” She testified that she confronted both of them, but each repeatedly denied

that anything inappropriate had happened. S.K. testified that she remembered being on the

couch with Mr. Morris while he was masturbating and touching her leg with his other hand when

her mother suddenly came down the stairs. According to S.K., “[Mr. Morris] jumped a little”

while she just “tightened up” for a moment before heading to the bathroom. She said that when

her mother asked her what was going on, she told her that nothing had happened.

                                   OTHER-ACTS EVIDENCE

       {¶10} Mr. Morris’s first assignment of error is that the trial court incorrectly allowed the

State to introduce evidence of his “other . . . acts to show proof of [his] character in violation of

[Rule 404(B) of the Ohio Rules of Evidence] . . . .” Mr. Morris has pointed to three lines of

questioning to which he objected at trial. First, he has argued that the trial court should have
                                                5


excluded all references to an incident involving Sarah, S.K.’s adult sister. Second, he has argued

that the trial court should have excluded S.K.’s mother’s testimony regarding him sometimes

ejaculating into towels or t-shirts during intercourse. Finally, he has argued that the trial court

should have excluded S.K.’s mother’s testimony regarding his penchant for kicking the dog if the

mother refused to have sex with him.

       {¶11} “A hallmark of the American criminal justice system is the principle that proof

that the accused committed a crime other than the one for which he is on trial is not admissible

when its sole purpose is to show the accused’s propensity or inclination to commit crime.” State

v. Curry, 43 Ohio St. 2d 66, 68 (1975). Rule 404(B) of the Ohio Rules of Evidence provides

that, “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a

person in order to show action in conformity therewith[,]” but may be admissible for other

purposes. Evid. R. 404(B). For example, evidence of other crimes, wrongs, or acts may be

admissible to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.” Id. Although the permissible purposes for the use of character

evidence found in Evidence Rule 404(B) are not limited to those delineated in the rule, such

evidence is “not admissible to prove the character of a person in order to show action in

conformity therewith[.]” State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-2407, ¶ 18.

       {¶12} The Ohio Supreme Court has recently directed courts to conduct a three-step test

to consider whether other-act evidence is admissible. State v. Williams, ___ Ohio St. 3d ___,

2012-Ohio-5695, ¶ 19. “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 Evid. R. 401). The second

step is to “consider whether evidence of the other crimes, wrongs, or acts is presented to prove
                                                 6


the character of the accused in order to show activity in conformity therewith or whether [it] is

presented for a legitimate purpose, such as those stated in Evid.R. 404(B).” Id. “The third step

is to consider whether the probative value of the other acts evidence is substantially outweighed

by the danger of unfair prejudice.” Id. (citing Evid. R. 403).

       {¶13} This Court has held that the rule “is to be strictly construed against the state and

conservatively applied by the trial courts.” State v. Bronner, 9th Dist. No. 20753, 2002-Ohio-

4248, ¶ 93 (citing State v. DeMarco, 31 Ohio St. 3d 191, 194 (1987) (“This court has held that

R.C. 2945.59 is to be strictly construed against the state, and to be conservatively applied by a

trial court. . . . The same logic should apply to Evid.R. 404(B).”)). This Court will apply an

abuse of discretion standard of review to determine whether the trial court properly exercised its

discretion by admitting the proffered evidence. State v. Morris, 132 Ohio St. 3d 337, 2012-Ohio-

2407, ¶ 19.

                     PROPOSITIONING HIS ADULT STEPDAUGHTER

       {¶14} Mr. Morris has argued that the trial court incorrectly permitted Sarah to testify

about an incident with Mr. Morris. Sarah is seven years older than S.K. In spring 2005, Sarah

was an adult and had been married the previous Christmas, but was living in the same house with

her grandmother, younger sister, mother, and Mr. Morris. Sarah testified that she walked into

her mother’s bedroom one evening and found Mr. Morris sitting on the corner of the bed. She

said that he “grabbed [her] waist and pulled [her] toward him and said, ‘You don’t know what I

would do to you but your mother would get mad.’” Sarah testified that she perceived the

comment to be sexual in nature, but that she “just laughed it off,” told him he was drunk, and

pushed him away. She returned to her own bedroom and that was the end of the interaction.
                                                 7


       {¶15} Sarah later told her mother about the incident, and her mother kicked Mr. Morris

out of the house for the night. The next day, Mr. Morris tearfully apologized to Sarah, saying

that he had been drunk at the time and did not remember making the comment. Sarah testified

that she believed Mr. Morris had been drunk because she had seen him drinking earlier that

evening. After the apology, Mr. Morris moved back into the house and, according to Sarah,

never again made an inappropriate comment to her. S.K.’s mother also testified about kicking

Mr. Morris out of the house briefly after learning about the incident with Sarah.

       {¶16} The trial court overruled Mr. Morris’s objection at trial, saying at sidebar that it

“th[ought] it[ ] [was] covered by . . . 404(B)[.]” The trial court did not rule with any specificity

why the testimony about Mr. Morris’s encounter with Sarah was admissible under Evidence Rule

404(B). The court did not explain what permissible use the evidence could be put to or offer any

analysis except to opine that the conduct with Sarah was “similar enough” to the charged

conduct with S.K. because it could be interpreted as a “sexual come-on” and it happened “in the

same bedroom” as some of the alleged abuse of S.K. The court did not analyze whether the

evidence was admissible to prove motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident or whether any of those topics was even at issue at

trial. Further, the trial court did not offer any other permissible use for the evidence not

enumerated in Rule 404(B).

       {¶17} On appeal, Mr. Morris has argued that all testimony about the incident with Sarah

was inadmissible under Evidence Rules 404(B) and 403.            He has specifically argued that

evidence of the alleged incident with Sarah was highly prejudicial and not at all similar to the

crimes with which he was charged. The State has argued on appeal that the incident with Sarah

is similar to the crimes charged because the target of each incident was one of Mr. Morris’s
                                                 8


stepdaughters and it happened in the mother’s bedroom, as did some of the alleged incidents of

molestation and rape described by S.K. On this basis, the State has now argued that the

testimony was properly admitted because it “demonstrates a common scheme and motive.”

                                     Scheme, plan, or system

       {¶18} In regard to other-act evidence, the Ohio Supreme Court has warned that “we . . .

must be careful . . . to recognize the distinction between evidence which shows that a defendant

is the type of person who might commit a particular crime and evidence which shows that a

defendant is the person who committed a particular crime.” State v. Lowe, 69 Ohio St. 3d 527,

530 (1994). According to the Ohio Supreme Court, as proof of identity, “[e]vidence of a

defendant’s scheme, plan, or system in doing an act can be relevant for two reasons: (1) the

other acts are part of one criminal transaction such that they are inextricably related to the

charged crime, and (2) a common scheme or plan tends to prove the identity of the perpetrator.”

State v. Schaim, 65 Ohio St. 3d 51, 63 n.11 (1992) (citing State v. Curry, 43 Ohio St. 2d 66, 72-

73 (1975)). Thus, evidence of a scheme, plan, or system tends to prove the identity of the

perpetrator either because the other act is part and parcel of the plan to commit the charged crime

or because the other act is so similar to the crime charged and sufficiently idiosyncratic that it

tends to prove the same person committed both acts. If the other act is part of the plan that

culminated in the charged crime, it is inextricably related and need not be at all similar to it. For

instance, evidence that the defendant stole a gun the day before he shot someone with it would be

relevant in defendant’s murder trial even though he is not charged with theft of the gun and theft

and murder are not similar crimes. On the other hand, evidence of a scheme, plan, or system

may tend to prove that the defendant committed the crime charged because the other act he is

known to have committed is so similar and idiosyncratic that it tends to prove he is the most
                                                 9


likely perpetrator of the charged crime.       For instance, a serial killer who attacks female

prostitutes from a certain neighborhood of a certain city and mutilates the abdomen of each

victim before dumping the body near the same riverbank leaves behind evidence of an

idiosyncratic pattern that tends to show that the same person committed each murder. Evidence

that the defendant is known to have committed two such idiosyncratic crimes in the recent past

would be admissible in a trial of the man for a third murder following that same pattern. The

Ohio Supreme Court has held that, under either scenario, evidence of a scheme, plan, or system

cannot be relevant to prove identity unless the identity of the perpetrator is actually being

disputed in the case. Id. (citing Curry, 43 Ohio St. 2d at 72-73).

       {¶19} The Ohio Supreme Court has described inextricably related other acts evidence as

that which “form[s] part of the immediate background of the alleged act which forms the

foundation of the crime charged[.]” State v. Lowe, 69 Ohio St. 3d 527, 531 (1994) (quoting State

v. Curry, 43 Ohio St. 2d 66, 73 (1975)). As examples of such “inextricably related” evidence,

the Court suggested evidence that the defendant had trespassed on the murder victim’s property

on the evening of the attack, evidence that he had tried to remove something from the crime

scene, or evidence that he had threatened a witness. Id. Generally speaking, if evidence of a

scheme, plan, or system is inextricably related to the charged crime, “it would be virtually

impossible to prove that the accused committed the crime charged without also introducing

evidence of the other act[ ].” State v. Lytle, 48 Ohio St. 2d 391, 403 (1976), vacated in part on

other grounds, 438 U.S. 910 (1978) (quoting Curry, 43 Ohio St. 2d at 73).

       {¶20} The comment that Sarah described did not form part of the immediate background

of the crimes charged and is not part of a single criminal transaction involving the alleged rapes

of her sister. It was not part of the plan that culminated in the alleged rapes of S.K. According
                                                10


to the testimony, Mr. Morris made the inappropriate comment to Sarah two years after the first

indicted rape of S.K. and six or eight months before the second indicted rape. There is nothing

about the incident described by Sarah that facilitated the alleged rapes of S.K. and nothing about

that evidence is necessary or even helpful to prove that Mr. Morris raped S.K. in April 2003 and

again in late 2005. S.K. was not present to witness Mr. Morris’s comment to Sarah and was

apparently not even told that it happened. The alleged habitual molestation of S.K. is wholly

unrelated to Mr. Morris’s single drunken comment to Sarah. As the behavior is really not related

at all, it cannot reasonably be described as ‘inextricably related.” State v. Schaim, 65 Ohio St. 3d

51, 63 n.11 (1992) (citing State v. Curry, 43 Ohio St. 2d 66, 72-73 (1975)).

       {¶21} If evidence of a scheme, plan, or system is not part of the immediate background

of the crime charged, it may still be admissible to prove identity because it is so similar to the

crime charged in some idiosyncratic way that it tends to show that the same person committed

both acts. This is because proof of a particular modus operandi or a unique scheme, plan, or

system of doing something can provide “a behavioral fingerprint which, when compared to the

behavioral fingerprints associated with the crime in question, [could] be used to identify the

defendant as the perpetrator.” State v. Myers, 97 Ohio St. 3d 335, 2002-Ohio-6658, ¶ 104

(quoting State v. Lowe, 69 Ohio St. 3d 527, 531 (1994)).

       {¶22} There is no evidence of a common scheme or plan in this case because there are

no such similarities between Mr. Morris’s alleged conduct with Sarah and his alleged conduct

with S.K. Neither the individuals targeted nor the methods Mr. Morris allegedly used to engage

or attempt to engage in sexual relations with them are similar. Sarah’s testimony did not have

any tendency to show a common scheme, plan, system, motive or intent for Mr. Morris raping a

child primarily because Sarah was not a child when Mr. Morris allegedly expressed a sexual
                                                 11


interest in her. Proving that a man is sexually attracted to an adult woman has no tendency to

prove that he is sexually attracted to little girls under the age of ten or thirteen, even if the two

are sisters.

        {¶23} Moreover, the single drunken comment allegedly made to Sarah was not at all

similar to the six-year pattern of fondling and rape described by S.K. There was nothing

idiosyncratic about the comment or the situation surrounding its delivery that could reasonably

be deemed to create “a behavioral fingerprint which, when compared to the behavioral

fingerprints associated with the crime in question, [could] be used to identify the defendant as the

perpetrator.” State v. Myers, 97 Ohio St. 3d 335, 2002-Ohio-6658, ¶ 104 (quoting State v. Lowe,

69 Ohio St. 3d 527, 531 (1994)). Sarah’s testimony did not have any tendency to prove that Mr.

Morris engaged in a similar pattern of conduct with her as he had allegedly followed with S.K.

S.K. did not testify that Mr. Morris ever approached her while drunk or in any way similar to

what Sarah described. According to S.K., Mr. Morris never grabbed her or said anything similar

to what he allegedly said to Sarah. S.K. testified that Mr. Morris spent time playing with her and

entertaining her when they first met before slowly increasing their physical proximity and the

sexual nature of their encounters. On the other hand, Sarah’s testimony was that Mr. Morris was

a great stepfather who had never said or done anything inappropriate to her when she was a

minor. Her testimony was that his inappropriate behavior with her was limited to one incident,

which occurred after she was married, in which he abruptly grabbed her and drew her to him one

evening while he was drunk.

        {¶24} Regardless of how similar and idiosyncratic the conduct, however, other-act

evidence tending to prove identity is not admissible unless identity is actually being disputed in

the case. State v. Schaim, 65 Ohio St. 3d 51, 63 n.11 (1992) (citing State v. Curry, 43 Ohio St.
                                                 12


2d 66, 72-73 (1975); State v. Lowe, 69 Ohio St. 3d 527, 531 (1994); R.C. 2945.59 (permitting

other-act evidence only “[i]n 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[.]”). “Identity is in issue when the fact of the crime is open and evident but the

perpetrator is unknown and the accused denies that he committed the crime. In that event other

act evidence tends to show the defendant’s identity as the perpetrator by showing that he

committed crimes of a similar methodology within a period of time reasonably near to the

offense on trial, which itself would constitute probative evidence of the probability that the same

person, whoever he or she may be, committed both crimes.” State v. Smith, 84 Ohio App. 3d

647, 666 (2d Dist. 1992).

       {¶25} In State v. Curry, 43 Ohio St. 2d 66 (1975), the Ohio Supreme Court held that

other-act evidence offered to show a common scheme, plan, or system was not admissible to

prove identity because identity was not being disputed in that case. Id. at 73. In Curry, the

defendant admitted that he drove the victim home on the date in question, but denied having

sexual contact with her.      In that situation, the Ohio Supreme Court determined that the

defendant’s denial “did not raise an identity question; it created, instead a factual dispute

revolving around [his] conduct with [the victim] during the trip . . . .” Id.; State v. Wilkins, 135

Ohio App. 3d 26, 31 (9th Dist. 1999) (holding identity not at issue in state’s case against

defendant who admitted driving rape victim to the store and never raised defense of mistaken

identity); State v. Miley, 5th Dist. Nos. 2005-CA-67, 2006-CA-14, 2006-Ohio-4670, ¶ 72-73

(holding identity not at issue in sexual molestation case in which brothers accused family friend

because “[i]f a crime did in fact occur, no dispute exists that appellant was the perpetrator.”). If

identity is not in dispute, then evidence of identity is not “relevant to making any fact that is of
                                                13


consequence to the determination of the action more or less probable than it would be without

the evidence.” State v. Williams, ___ Ohio St. 3d ___, 2012-Ohio-5695, ¶ 20.

       {¶26} Identity was not disputed in this case.        The main issue at trial was S.K.’s

credibility. If the crimes occurred at all, there was no question about who committed them. See

State v. Curry, 43 Ohio St. 2d 66, 73 (1975); State v. Miley, 5th Dist. Nos. 2005-CA-67, 2006-

CA-14, 2006-Ohio-4670, ¶ 72-73. S.K. had lived in the same house with Mr. Morris for years.

She had no trouble identifying him. There was no evidence tending to indicate that she was at all

confused about the identity of the man whom she says repeatedly fondled and raped her in her

own home over the course of several years. The defense theory was that the events S.K.

described never happened, not that someone else committed them. Thus, identity was not at

issue in this case and evidence of a scheme, plan, or system could not be admitted to prove

identity no matter how similar to the crimes charged because identity is not a fact that is of

consequence to the determination of the action. State v. Schaim, 65 Ohio St. 3d 51, 63 n.11

(1992) (citing Curry, 43 Ohio St. 2d at 73); State v. Lowe, 69 Ohio St. 3d 527, 531 (1994); State

v. Cullers, 2d Dist. No. 18602, 2001 WL 1388506, *9-10 (Nov. 9, 2001) (concluding that

identity was not at issue in child molestation case, even in light of defendant’s claim that

children’s uncle may have molested them, because victims knew alleged perpetrator and alleged

that all incidents occurred at his house while he was babysitting them).

       {¶27} The Ohio Supreme Court has limited its holding in Curry and has explained that,

under Evidence Rule 404(B), “evidence of other crimes, wrongs, or acts of an accused may be

admissible to prove intent or plan, even if the identity of an accused or the immediate

background of a crime is not at issue.” State v. Williams, ___ Ohio St. 3d ___, 2012-Ohio-5695,

¶ 2. In Williams, the defendant was accused of engaging in sexual relations with a fourteen-year-
                                                14


old boy he had mentored through his church. The Supreme Court held that evidence that the

defendant had had a similar relationship with a different teenage boy he had coached on a

swimming team twelve years earlier was admissible under Evidence Rule 404(B) “to show the

plan of the accused and the intent for sexual gratification.” Id. at ¶ 25. In Williams, the evidence

indicated that the defendant had targeted young, fatherless males “to gain their trust and

confidence and groom them for sexual activity with the intent of sexual gratification.” Id. Mr.

Williams befriended the victim, often bought him gifts, and paid him to do odd jobs at Mr.

Williams’s house. The other-act evidence showed that Mr. Williams had “exhibited a pattern of

isolating certain types of victims and then abused a position of authority to engage in grooming

behaviors for the purpose of sexual gratification . . . .” Id. at ¶ 11. Furthermore, part of Mr.

Williams’s defense was to claim that he was only sexually attracted to women. The Supreme

Court overruled the Eighth District’s en banc decision and held that the other-act evidence was

admissible. Id. at ¶ 25. The Court held the other-act evidence tended to prove that Mr. Williams

derived sexual gratification from engaging in sexual relations with teenage boys and that he had

a certain plan or method of targeting a certain group of victims by gaining their trust through the

role of an authority figure before abusing them. Id.

       {¶28} The facts of Williams are distinguishable from this case. Sarah’s testimony was

not admissible because there is a fundamental difference between a man’s desire to engage in

sexual activity with his wife’s adult daughter and his desire to rape his wife’s little girl. The

other-act evidence did not tend to show Mr. Morris’s identity as the perpetrator, both because

identity was not disputed and because there is nothing idiosyncratic or even similar about the two

allegations. There was no evidence of a plan or particular method Mr. Morris engaged in for the

purpose of abusing young girls or to gain access to a certain class of victims. One cannot
                                               15


reasonably conclude that the evidence offered by Sarah has any tendency to prove that Mr.

Morris engaged in a similar plan or method of conduct with the two sisters or that his alleged

conduct with Sarah has some tendency to prove his motive or intent on certain occasions to

derive sexual gratification from a child.   Thus, Sarah’s testimony could not reasonably be

deemed admissible under Evidence Rule 404(B) to prove motive, intent, plan, or identity.

                                     Other permissible uses

       {¶29} No other support for the trial court’s determination that the evidence of the

incident with Sarah could have been admitted without violating Evidence Rule 404(B) has been

suggested by the trial court, the State, or the dissent, and this Court cannot think of any

permissible use for it. The evidence was not admissible to prove that Mr. Morris had an

opportunity to engage in sexual conduct with his stepdaughter. Mr. Morris’s single drunken

comment to Sarah has no tendency to prove that he had the opportunity to rape S.K. The

evidence showed that S.K. was not present when Mr. Morris allegedly grabbed Sarah, and

nothing about that incident provided Mr. Morris an opportunity to rape S.K. He had every

opportunity to rape S.K. because he lived in the same house with her during the entire period of

the alleged abuse. Several witnesses testified that Mr. Morris and S.K. had always had a close

relationship, and Mr. Morris did not deny that. In fact, his lawyer cross-examined S.K. about her

spending time with Mr. Morris and even willingly leaving the house alone with him long after

the first alleged rape. There could be no doubt that Mr. Morris had ample opportunity to rape

her. The question at trial was whether she was telling the truth when she claimed that he had, in

fact, done so. Sarah’s testimony had no tendency to prove that Mr. Morris had an opportunity to

rape S.K. in April 2003 and near Halloween 2005.
                                               16


       {¶30} Other-act evidence may be relevant to prove a defendant’s preparation to commit

the charged crime. For example, despite the lack of similarity of the conduct, evidence that a

defendant had stolen a gun the day before using it to shoot his neighbor would be relevant to

prove preparation for murder even though the defendant was not charged with theft. Similarly,

evidence that a defendant had stolen the getaway car before robbing a bank would be relevant to

prove preparation for the robbery even if the defendant is not charged with stealing the car. See

James W. McElhaney, McElhaney’s Trial Notebook, 292-93 (4th Ed. 2005).

       {¶31} Evidence that Mr. Morris made a potentially sexual comment to his adult

stepdaughter in the spring of 2005 does not have any tendency to prove that Mr. Morris was

preparing to rape S.K. It certainly cannot be evidence of preparation to commit a crime that had

already been committed.     S.K. testified that Mr. Morris initiated sexual contact with her

approximately thirty times, but that he had vaginal intercourse with her about 10 times starting

when she was in first grade and ending when she was 13 years old. The two indicted offenses,

for which she recalled fairly specific dates, occurred in April 2003 and near Halloween 2005.

Evidence of his alleged comment to Sarah has no tendency to prove that Mr. Morris was in any

way preparing to rape S.K., whom he had allegedly already been raping and molesting for at

least two years.

       {¶32} The remaining options listed in Rule 404(B) for proper use of other-acts evidence

are if the evidence has some tendency to prove knowledge or absence of mistake or accident.

Mr. Morris’s defense was based on the theory that he never touched S.K. in an inappropriate

manner. His defense was that she fabricated the story because she was a troubled teenager who

was angry at him for leaving her mother and causing them to lose the family home to

foreclosure. The statute under which he was convicted provides that, regardless of whether the
                                                  17


offender knows the age of the victim, “[n]o person shall engage in sexual conduct with another

who is not the spouse of the offender . . . when . . . [t]he other person is less than thirteen years of

age[.]” R.C. 2907.02(A)(1)(b). Therefore, it would have done Mr. Morris no good to claim that

he did not know that S.K. was under the age of thirteen. Mr. Morris did not claim that he

accidently raped the child or that he mistakenly had sexual intercourse with her. There was no

dispute about whether Mr. Morris knowingly raped S.K., had specialized knowledge facilitating

the rapes, or whether he acted with the requisite criminal intent. See 1 Mueller & Kirkpatrick,

Federal Evidence, Section 4:34 (3d Ed. 2012) (explaining the difference between the use of other

acts to prove intent and knowledge under Rule 404(b) of the Federal Rules of Evidence). Mr.

Morris simply denied the crimes occurred.

        {¶33} Under the circumstances, the evidence could not reasonably be said to be

permissibly used for any of the purposes mentioned in Evidence Rule 404(B), and the trial court

did not assign any other purpose. The only plausible use for the evidence presented by Sarah

was to draw the impermissible character inference forbidden by Evidence Rule 404(B): to show

that Mr. Morris is the type of sexually perverted man who would like to engage in sexual activity

with his wife’s adult daughter and, therefore, is likely to have raped her little girl on the dates in

question. See State v. Deyling, 9th Dist. No. 2672-M, 1998 WL 46753, *2 (Jan. 28, 1998)

(excluding evidence in domestic violence trial of prior incident when defendant allegedly struck

the victim during an argument because the “only plausible use” “was to draw the impermissible

character inference”).

                                         Abuse of discretion

        {¶34} The evidence of Mr. Morris making a sexually suggestive comment to Sarah was

“obviously intended to prove the character of the appellant in order to show that he acted in
                                                  18


conformity therewith concerning the crimes of which he was convicted.” State v. Price, 80 Ohio

App. 3d 35, 41 (3d Dist. 1992) (holding that evidence that defendant had sexual intercourse with

15-year-old victim’s older sister was “clearly inadmissible for any purpose” in rape trial of

victim’s stepfather). Such evidence is inadmissible under Evidence Rule 404(B) because it

would be easy for a jury to assume that the type of man who would express an interest in having

sex with his wife’s adult daughter, could be just the type of man who would have the urge to

sexually molest a young child, especially if the young child is also his wife’s daughter.

       {¶35} That is precisely the leap in logic that Rule 404 is designed to prevent. State v.

Curry, 43 Ohio St. 2d 66, 68 (1975). “Such evidence is inadmissible . . . [because] it is both

legally irrelevant and highly prejudicial.” State v. Bronner, 9th Dist. No. 20753, 2002-Ohio-

4248, ¶ 90. “It poses a ‘temptation . . . for the jury to try the case on evidence of character rather

than on evidence of guilt . . . [because] it becomes difficult for the jury not to speculate that since

the defendant . . . is a bad person, he probably committed the present crime.’” Id. at ¶ 90-91

(quoting State v. Griffin, 142 Ohio App. 3d 65, 71 (1st Dist. 2001)). “Rule 404(B) thus operates

as a specialized application of the principle in Rule 403 that unfairly prejudicial evidence should

be excluded.” Glen Weissenberger, Ohio Evidence Treatise, Section 404.22, at 73 (2011).

“[Extrinsic-act evidence is excluded] not because it has no appreciable probative value, but

because it has too much. The natural and inevitable tendency of the tribunal—whether judge or

jury—is to give excessive weight to the vicious record of crime thus exhibited, and either to

allow it to bear too strongly on the present charge, or to take proof of it as justifying a

condemnation irrespective of guilt of the present charge.” Id. (quoting 1A Wigmore, Evidence,

Section 58.2). Sarah’s testimony had no probative value other than to encourage the jury to

make the inference prohibited by Rule 404 of the Ohio Rules of Evidence.
                                                19


       {¶36} “An abuse of discretion means that the trial court was unreasonable, arbitrary, or

unconscionable in its ruling.” Kish v. Kish, 9th Dist. No. 12CA010185, 2012-Ohio-5430, ¶ 9

(citing Blakemore v. Blakemore, 5 Ohio St. 3d 217, 219 (1983)). “It is not sufficient for an

appellate court to determine that a trial court abused its discretion simply because the appellate

court might not have reached the same conclusion or is, itself, less persuaded by the trial court’s

reasoning process than by the countervailing arguments.” State v. Morris, 132 Ohio St. 3d 337,

2012-Ohio-2407, ¶ 14. “‘Abuse of discretion’ has been described as including a ruling that lacks

a ‘sound reasoning process.’” Id. (quoting AAAA Ent. Inc. v. River Place Community Urban

Redevelopment Corp., 50 Ohio St. 3d 157, 161 (1990)).

       {¶37} The trial court’s decision to admit evidence that Mr. Morris made a suggestive

comment to his adult stepdaughter years after he allegedly began molesting and raping his minor

stepdaughter lacks a sound reasoning process in light of Evidence Rule 404(B). The only

“reasoning process” evident in the record is that the trial court deemed the incident with Sarah

“similar enough” to the crimes charged. The trial court’s ruling admitting the evidence of Mr.

Morris’s inappropriate comment to Sarah was unreasonable as it was not based on a sound

reasoning process.

       {¶38} Even if the evidence could be reasonably deemed admissible under the first two

steps of the Ohio Supreme Court’s test for admissibility of other-act evidence, it fails to satisfy

the third prong because it should have been excluded under Evidence Rule 403(A). “Although

relevant, evidence is not admissible if its probative value is substantially outweighed by the

danger of unfair prejudice, of confusion of the issues, or of misleading the jury.” Evid. R.

403(A).
                                                20


       {¶39} In a case with no eye-witnesses beyond the victim and no physical evidence or

confession of any kind, the jury had to determine the case largely based on credibility. The jury

learned that, several months after her stepfather moved out and allegedly caused the loss of the

family home to foreclosure, a troubled teenager accused him of molesting and raping her over

the course of several years. To that, the State added evidence that Mr. Morris once made a

suggestive comment to his adult stepdaughter while he was drunk. In this situation, Sarah’s

testimony was highly prejudicial and could have tipped the credibility scale in favor of S.K.

       {¶40} Although the trial court gave a general limiting instruction to the jury, the State

spent much of its time in closing argument trying to convince the jury to use Sarah’s testimony

in precisely the manner forbidden by Evidence Rule 404(B).             During rebuttal close, the

prosecutor went so far as to actually equate the sexual comment allegedly made to the adult sister

to the alleged rape of the younger sister. The prosecutor told the jury that, although child

molestation usually happens in private, ensuring a lack of eyewitnesses, in this case there was

evidence of “it happening to [S.K.’s older sister].” Thus, the State asked the jury to convict Mr.

Morris of raping S.K., not because of other-act evidence that tended to show he had similarly

groomed other little girls for his own sexual pleasure, but because they heard evidence that he

had once made an inappropriate comment to the child’s adult sister. Evidence Rule 404(B)

forbids that leap in logic. That is, such evidence is not admissible to prove that Mr. Morris is the

type of man who would be willing to cross that moral boundary with his wife’s adult daughter so

he is probably also the type of man who would rape his wife’s nine or twelve-year-old daughter.

The trial court abused its discretion in admitting the evidence of the comment Mr. Morris made

to Sarah because the decision lacks a sound reasoning process.
                                                 21


                                       KICKING THE DOG

       {¶41} Mr. Morris has also argued that the trial court incorrectly admitted evidence about

him kicking the family dog if his wife refused to have sex with him. S.K.’s mother, who was

once Mr. Morris’s wife, testified that he wanted to have sex with her every day and would

become verbally abusive and kick the family dog if she refused.        Mr. Morris objected to this

testimony at trial. The trial court overruled the objection, but permitted a continuing objection to

the line of inquiry regarding the sexual relationship between Mr. Morris and S.K.’s mother. That

line of inquiry included testimony about Mr. Morris ejaculating into towels during sex and

kicking the dog if she refused to have sex with him. Other than stating that testimony on the

topic “could be relevant” and that it fell under Evidence Rule 404(B), the trial court did not

explain its reasons for overruling the objection.      On appeal, the State has argued that the

testimony was admissible because it showed “[a] motive and common plan” for rape. According

to the State, Mr. Morris’s “insatiable sexual appetite . . . is clearly the motive for [Mr.] Morris’s

sexual abuse of S.K.” Mr. Morris has argued that his former wife’s testimony on this topic

should have been excluded under Evidence Rule 404.

       {¶42} The State presented no evidence that an unfulfilling sexual life with one’s spouse

has a tendency to show motive for the rape of a child. Further, it presented no evidence that men

with voracious sexual appetites are sexually attracted to young children. What is more, even if

evidence of Mr. Morris’s voracious sexual appetite were admissible, the added fact that he took

out his sexual frustration by kicking the dog goes far beyond tending to prove that voracious

appetite. The kick-the-dog evidence tended to show that Mr. Morris was prone to act out if his

wife refused to have sex with him every day. The only possible reason for introducing that

evidence was to demonstrate his character, that is, that he was sexually frustrated, mean, and
                                                22


aggressive. The obvious reason to present that evidence was to encourage the jury to conclude

that Mr. Morris acted in conformity with that character by committing the rapes with which he

had been charged.

       {¶43} The testimony about Mr. Morris kicking the family dog out of sexual frustration

when his wife refused to have sex with him did not tend to prove any of the permissible topics

enumerated in Rule 404(B) of the Ohio Rules of Evidence. Although the list of exceptions in

Rule 404(B) is not exclusive, the trial court did not offer any additional permissible use for this

other-act evidence under the circumstances. “The ultimate issue is a determination of the way in

which the extrinsic act is relevant, because the Rule specifically authorizes the use of extrinsic

acts where the evidence is offered to prove a relevant fact other than propensity and conforming

conduct.” Glen Weissenberger, Ohio Evidence Treatise, Section 404.23, at 76 (2011); see also

State v. Williams, ___ Ohio St. 3d ___, 2012-Ohio-5695, ¶ 20. Although the trial court is not

required to include a detailed analysis in the record, without any indication of any reasoning

process, this Court is unable to analyze the soundness of the trial court’s thinking beyond an

analysis of the rule itself. This Court cannot think of any relevant permissible use for evidence

that Mr. Morris kicked the dog when his wife refused to have sex with him.

       {¶44} Based on the record before this Court, it appears that the evidence that Mr. Morris

would kick the dog out of sexual frustration was admitted solely to prove that Mr. Morris would

aggressively act out if his voracious sexual appetite was not satisfied on a daily basis, leading to

the obvious inference that he acted in conformity with that character trait by raping his

stepdaughter on the two occasions noted in the indictment. Thus, the trial court improperly

exercised its discretion by admitting the evidence that Mr. Morris kicked the dog out of sexual

frustration. See Evid. R. 404(B).
                                                23


                    USING TOWELS DURING SEXUAL INTERCOURSE

       {¶45} S.K. testified that, every time Mr. Morris ejaculated while molesting her, he

would quickly cover his penis with a towel. Mr. Morris has argued that S.K.’s mother, who was

married to him at the time of the alleged incidents, should not have been permitted to testify that

“[w]hen [Mr. Morris] and I had sex, he would sometimes [ejaculate] in a towel or a T-shirt or

whatever was around.” She went on to say that she did not understand why he would do that

because he knew she could not get pregnant. Mr. Morris objected at trial, and the State argued

that the testimony should be admitted under Evidence Rule 404(B) because it “goes toward

modus operandi, knowledge and other acts of evidence.” The trial court admitted the testimony,

but did not explain a basis for overruling the objection except to mention “[Evidence Rule]

404(B).” On appeal, Mr. Morris has argued that the trial court should not have allowed the

mother’s testimony on this point because it was not admissible under Evidence Rule 404(B) and

403(A).

       {¶46} The State has argued that the testimony was admissible because it is evidence of

“idiosyncratic behavior that shows a common plan” and “his modus operandi for disposal of

semen . . . [that is,] [e]xcept when having sex with his wife, [Mr.] Morris always ejaculates into a

towel.” The State’s argument is based on a misunderstanding of S.K.’s mother’s testimony.

What she said was that Mr. Morris “sometimes” ejaculated into a towel when they did have sex –

not at times other than when they had sex.

       {¶47} In any event, the testimony does not run afoul of Evidence Rule 404 because it is

not “evidence of a person’s character or a trait of character.” Evid. R. 404(A); see also State v.

Shedrick, 61 Ohio St. 3d 331, 337 (1991) (explaining that Evidence Rule 404 excludes evidence

that “tends to show [the defendant’s] bad character.”). S.K.’s mother’s testimony about Mr.
                                                24


Morris unexpectedly ejaculating into towels during sex implied nothing about his character. The

testimony was relevant because S.K. had previously said that Mr. Morris had always ejaculated

into a towel when molesting her. Evid. R. 401. It could hurt Mr. Morris’s case because it

provided some corroboration of S.K.’s allegation that she had been involved in a sexually

intimate situation with Mr. Morris. As relevant evidence, it was admissible unless otherwise

objectionable. Evid. R. 402. It was not objectionable character evidence under Rule 404.

       {¶48} Mr. Morris has also argued that this testimony was “inflammatory, confusing,

[and] unreliable” and that any probative value was substantially outweighed by the danger of

unfair prejudice. See Evid. R. 403(A). The testimony was clear, and it was not inherently

unreliable. The jury was capable of determining what weight, if any, it deserved in light of the

other evidence in the case. Admission of the testimony, harmful as it may have been to Mr.

Morris’s case, was not unfairly prejudicial and was not a violation of Evidence Rule 403(A).

       {¶49} This Court has not considered the application of Ohio’s rape shield law to this

testimony because Mr. Morris neither raised an objection in the trial court nor an argument on

appeal based on it. See R.C. 2907.02(D). To the extent that it addressed the mother’s testimony

regarding Mr. Morris ejaculating into towels, the first assignment of error is overruled because

the trial court correctly overruled Mr. Morris’s objection to the testimony, albeit on an incorrect

basis. See State v. Campbell, 90 Ohio St. 3d 320, 329 (2000).

                                      HARMLESS ERROR

       {¶50} Having determined that the trial court erroneously admitted evidence of two

instances of Mr. Morris’s other acts in violation of Rule 404(B) of the Ohio Rules of Evidence,

this Court must decide whether the errors were harmless. Under Rule 52(A) of the Ohio Rules of

Criminal Procedure, “[a]ny error, defect, irregularity, or variance which does not affect
                                                  25


substantial rights shall be disregarded.” The Ohio Supreme Court has repeatedly held that

“[e]rror in the admission of evidence is harmless if there is no reasonable possibility that the

evidence may have contributed to the accused’s conviction.” State v. Rahman, 23 Ohio St. 3d

146, 151 (1986) (quoting State v. Bayless, 48 Ohio St. 2d 73, 106 (1976), vacated in part on other

grounds, 438 U.S. 911 (1978)). It has further written that, “[i]n order to hold the error harmless,

the court must be able to declare a belief that the error was harmless beyond a reasonable doubt.”

Bayless, 48 Ohio St. 2d at 106 (citing State v. Abrams, 39 Ohio St. 2d 53 (1974); State v.

Crawford, 32 Ohio St. 2d 254 (1972); Chapman v. California, 386 U.S. 18 (1967); Harrington v.

California, 395 U.S. 250 (1969)). The standard applied by the Ohio Supreme Court in Bayless

was derived from United States Supreme Court case law describing the federal constitutional

harmless-error standard. Id. (citing Chapman, 386 U.S. 18; Harrington, 395 U.S. 250). The

Ohio Supreme Court has applied this test to evaluate whether an error in improperly admitting

evidence of a defendant’s other acts was harmless, and this Court has followed suit. Id.; see also

State v. Treesh, 90 Ohio St. 3d 460, 483 (2001); State v. Lytle, 48 Ohio St. 2d 391, 403 (1976);

State v. Bronner, 9th Dist. No. 20753, 2002-Ohio-4248, ¶ 96; State v. Deyling, 9th Dist. No.

2672-M, 1998 WL 46753, *2 (Jan. 28, 1998).

       {¶51} In evaluating the impact of improperly admitted other-acts evidence, the appellate

court must consider “[t]he severity of [the improper] reflections upon the defendant’s credibility

and character . . . in relation to the other evidence in the case.”   State v. Bayless, 48 Ohio St. 2d

73, 107 (1976).     In Bayless, the Court determined that the error was harmless beyond a

reasonable doubt because “[t]he mass of evidence in the case contradicted and impeached [the

defendant’s] testimony so thoroughly that the effect of the rebuttal testimony upon his credibility

appears insignificant.” Id. Thus, admission of improper evidence is harmless if, as is often the
                                                  26


case, “the remaining evidence alone comprises ‘overwhelming’ proof of defendant’s guilt.”

State v. Williams, 6 Ohio St. 3d 281, 290 (1983) (quoting Harrington v. California, 395 U.S.

250, 254 (1969)); but see State v. Brown, 100 Ohio St. 3d 51, 2003-Ohio-5059, ¶ 25; State v.

Webb, 70 Ohio St. 3d 325, 335 (1994); State v. Davis, 44 Ohio App. 2d 335, 348 (8th Dist.

1975). Regardless of the fact that courts have sporadically applied a less stringent harmless-error

standard in some cases involving non-constitutional errors in the admission of evidence, the

higher standard applies in this case because “the injection of . . . inflammatory . . . material”

violated Mr. Morris’s right to a fair trial “as that term is understood under the [D]ue [P]rocess

[C]lause of the [F]ourteenth [A]mendment.” Davis, 44 Ohio App. 2d at 348.

        {¶52} The application of the harmless error rule is simple if, in the absence of all

erroneously admitted evidence, there remains “overwhelming” evidence of guilt. State v.

Williams, 6 Ohio St. 3d 281, 290 (1983) (quoting Harrington v. California, 395 U.S. 250, 254

(1969)). The application is more difficult in a case such as this “in which the question of guilt or

innocence is a close one.” Chapman v. California, 386 U.S. 18, 22 (1967). In close cases,

“harmless-error rules can work very unfair and mischievous results when . . . highly important

and persuasive evidence . . . though legally forbidden, finds its way into a trial . . . .” Id.

        {¶53} Setting aside the erroneously admitted character evidence, there is not

overwhelming evidence of Mr. Morris’s guilt in this case. In the absence of any confession,

physical evidence, or eyewitnesses other than S.K. to sexual conduct or even sexual contact

between Mr. Morris and S.K., the State’s case rested largely on S.K.’s credibility. Although

there was corroborating circumstantial evidence offered by S.K.’s mother and sister, each of

whom testified that they had once seen a suspicious-looking situation, neither was able to testify

as an eyewitness to any acts of molestation or rape. Various witnesses testified about S.K.’s
                                                 27


emotional problems and to certain times over the years when S.K. seemed to be struggling with a

secret that she was unable to reveal. But S.K. admitted that her emotional problems were not

entirely caused by Mr. Morris and that she had been depressed before her mother met him.

       {¶54} S.K.’s mother’s testimony about Mr. Morris’s odd behavior during sexual

intercourse provided some circumstantial corroboration of S.K.’s testimony. S.K.’s credibility

was best supported by her own testimony describing how her relationship with Mr. Morris went

through phases that seemed to move toward sexualization over time as bolstered by her

counselor’s testimony that her account was consistent with the “grooming” behavior of a

pedophile preparing a child for molestation.

       {¶55} Regardless of whether the verdict could have withstood a challenge based on the

manifest weight of the evidence, the question of whether the errors were harmless requires a

different analysis. As the Ohio Supreme Court has written, “[the appellate court’s] role upon

review [in such a] case is not to sit as the supreme trier of fact, but rather to assess the impact of

this erroneously admitted testimony on the jury.” State v. Rahman, 23 Ohio St. 3d 146, 151 n.4

(1986). “It is not the appellate court’s function to determine guilt or innocence . . . .” Id.

(quoting United States v. Hasting, 461 U.S. 499, 516 (1983) (Stevens, J., concurring)). “[T]he

question is, not were [the jurors] right in their judgment, regardless of the error or its effect upon

the verdict. It is rather what effect the error had or reasonably may be taken to have had upon

the jury’s decision.” Id. (quoting Hasting, 461 U.S. at 516 (Stevens, J., concurring)). Highly

inflammatory evidence, erroneously admitted, can make it easy for a jury to believe the State’s

theory and the State’s witnesses over those of the defense, especially in a close case.

       {¶56} The “danger that the jury will convict the defendant solely because it assumes that

the defendant has a propensity to commit criminal acts, or deserves punishment regardless of
                                                 28


whether he . . . committed the crime charged in the indictment . . . is particularly high when the

other acts are very similar to the charged offense or of an inflammatory nature . . . .” State v.

Miley, 5th Dist. Nos. 2005-CA-67, 2006-CA-14, 2006-Ohio-4670, ¶ 58 (citing State v. Curry, 43

Ohio St. 2d 66, 68 (1975); State v. Schaim, 65 Ohio St. 3d 51, 60 (1992)). Sexually deviant acts,

especially those against children, carry a severe social stigma, leading to an increased risk that

other sexually deviant acts by the defendant will influence a jury to convict because it assumes

the defendant is a bad man. The evidence that Mr. Morris grabbed his adult stepdaughter, pulled

her toward him, and made a sexually charged comment to her was highly inflammatory,

especially in light of the fact that Mr. Morris was charged with raping her younger sister. The

evidence that Mr. Morris would become verbally abusive toward his wife and even kick the dog

if she refused to have sex with him every day is less inflammatory, but was similarly aimed at

convincing the jury that Mr. Morris is a sex-crazed pervert.

       {¶57} Although Sarah testified that in all her years of living with Mr. Morris, that

drunken comment was the only inappropriate advance he ever made toward her, the State did its

best to convince the jury that her testimony was evidence of Mr. Morris’s motive and intent and

plan to rape a little girl. During the State’s closing argument, the prosecutor advised the jury

that, “if you want to know a little bit about [Mr. Morris’s] motives and his intent and his intent

for [S.K.], just look at how he treated his other stepdaughter . . . .” Later in closing argument, the

prosecutor said that S.K.’s story is “corroborated by the sister who had an incident with him that

showed a similar plan and preparation and intent.”

       {¶58} The prosecutor directly asked the jury to equate the sexual comment allegedly

made to the adult sister to the alleged rape of the younger sister. The prosecutor told the jury that

there was evidence of “it happening to [S.K.’s older sister].” Thus, the State blatantly attempted
                                                 29


to persuade the jurors that they should convict Mr. Morris of raping the child victim based on

evidence that he had done “it” to her older sister. In fact, the jury had heard absolutely no

evidence that Mr. Morris had raped Sarah when Sarah was a child. They also had not heard any

evidence that he had raped Sarah when she was an adult. Even so, the State used that improperly

admitted evidence to attempt to persuade the jury to make the very leap in logic that is forbidden

by Rule 404(B) of the Ohio Rules of Evidence. That is, if Mr. Morris is the type of man who

would be willing to cross that moral boundary with his wife’s adult daughter, then the jury

should also believe he is “the type of person” who would rape his wife’s nine or twelve-year-old

daughter. State v. Lowe, 69 Ohio St. 3d 527, 530 (1994).

       {¶59} The effect of the errors in this case is extensive because the inflammatory material

was not limited to a brief, isolated comment. The State elicited testimony regarding the incident

between Mr. Morris and Sarah from three witnesses, and referenced it on seven different

occasions during closing argument, including referring to Sarah as Mr. Morris’s “victim.” This

Court cannot say that “there is no reasonable possibility that the evidence may have contributed

to the . . . conviction.” State v. Bayless, 48 Ohio St. 2d 73, 106 (1976). It seems quite likely that

the average juror would have considered the erroneously admitted evidence and would have

found it easy to believe that Mr. Morris, being sexually frustrated and perverted, was likely

guilty of raping his young stepdaughter. The improperly admitted other-acts testimony put

inflammatory evidence of Mr. Morris’s character before the jury. In a case based largely on

S.K.’s credibility, evidence that Mr. Morris had once propositioned her older sister had a great

probability of tipping the scale in favor of S.K.’s credibility and against Mr. Morris’s. Based on

a review of the entire record, this Court cannot “declare a belief that the error was harmless

beyond a reasonable doubt.” Id. (citing State v. Abrams, 39 Ohio St. 2d 53 (1974); State v.
                                                30


Crawford, 32 Ohio St. 2d 254 (1972); Chapman v. California, 386 U.S. 18 (1967); Harrington v.

California, 395 U.S. 250 (1969)). To the extent Mr. Morris’s first assignment of error is

addressed to the propositioning-of-Sarah testimony and the kicking-the-dog testimony, it is

sustained.

                                         CONCLUSION

       {¶60} This Court must reverse Mr. Morris’s convictions because the trial court abused

its discretion by erroneously admitting evidence of other acts that did not fit within what is

permissible under Rule 404(B) of the Ohio Rules of Evidence or any other permissible purpose.

The State’s repeated references to improper character evidence violated Mr. Morris’s right to a

fair trial. There is a reasonable possibility that the improper evidence may have contributed to

the conviction and this Court cannot declare a belief that the errors were harmless beyond a

reasonable doubt.    This Court’s resolution of the first assignment of error is dispositive,

rendering the other assignments of error moot, so they will not be addressed. See App. R.

12(A)(1)(c). Therefore, the judgment of the Medina County Common Pleas Court is reversed,

and this matter is remanded for further proceedings consistent with this opinion.

                                                                              Judgment reversed,
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.
                                                31


       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT



BELFANCE, J.
CONCURS IN JUDGMENT ONLY.

CARR, P. J.
DISSENTING.

       {¶61} I respectfully dissent.

       {¶62} I would overrule Morris’ first assignment of error in its entirety because I do not

believe that the trial court abused its discretion when it admitted evidence relating to the

incidents involving Morris’ proposition of Sarah and his tendency to kick the family dog

pursuant to Evid.R. 404(B).

       {¶63} However, assuming arguendo that the trial court erred by admitting this evidence,

I would conclude that it was harmless error because the remaining evidence constituted

overwhelming proof of Morris’ guilt. See State v. Williams, 6 Ohio St.3d 281 (1983), paragraph

six of the syllabus. The victim’s detailed and consistent testimony established that Morris

repeatedly raped her over a period of seven or eight years. She described how Morris’ behaviors
                                               32


towards her evolved in a manner that the victim’s counselor testified were consistent with the

ways in which a pedophile would groom his victim to facilitate future molestation. In addition,

this Court has consistently held that “[i]n sex offense cases, *** the testimony of the victim, if

believed, is sufficient to support a conviction, even without further corroboration. Thus, the

testimony of the victim may be enough, and does not need corroborating evidence.” (Internal

citations omitted.)   State v. Melendez, 9th Dist. No. 08CA009477, 2009-Ohio-4425, ¶ 15,

quoting State v. Willard, 9th Dist. No. 05CA0096-M, 2006-Ohio-5071, ¶ 11. The lack of

physical evidence in a case where such evidence was unlikely due to the passage of time does

not detract from the victim’s testimony. In addition, although there were no third-party eye

witnesses to any acts of rape, Mother testified that she observed what she believed to be

inappropriate sexual activity between Morris and S.K. Accordingly, because the evidence of

Morris’ guilt was overwhelming based on other evidence, the admission of the challenged other-

act evidence was harmless error, if it constituted error at all. Accordingly, I would overrule

Morris’ first assignment of error.

       {¶64} In addition, upon review, I would overrule his remaining assignments of error and

affirm his conviction for rape of a child.


APPEARANCES:

DAVID C. SHELDON, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting
Attorney, for Appellee.
