[Cite as State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706.]




              THE STATE OF OHIO, APPELLANT, v. DAVIS, APPELLEE.
          [Cite as State v. Davis, 127 Ohio St.3d 268, 2010-Ohio-5706.]
Evidence — Spousal testimony — Plain-error analysis required before reversing
        a conviction for Evid.R. 601(B) violation — Judgment reversed and cause
        remanded.
           (No. 2009-2208 — Submitted September 28, 2010 — Decided
                                   November 30, 2010.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 91324,
                                     2009-Ohio-5217.
                                  __________________
                                SYLLABUS OF THE COURT
An appellate court may not reverse a conviction for plain error based on the
        admission of spousal testimony in violation of Evid.R. 601(B) unless it
        conducts a plain-error analysis pursuant to State v. Adamson (1995), 72
        Ohio St.3d 431, 650 N.E.2d 875, and determines that but for the error in
        admitting the spouse’s testimony, the outcome of the trial would have
        been different and that reversal is necessary to prevent a manifest
        miscarriage of justice.
                                  __________________
        O’DONNELL, J.
        {¶ 1} The state appeals from a judgment of the Eighth District Court of
Appeals that reversed multiple rape and gross sexual imposition convictions of
William N. Davis. The appellate court held that the trial court had erred in
admitting testimony from Davis’s spouse in violation of Evid.R. 601(B) because
it did not inform her that she could choose not to testify against her husband and
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did not determine that she had elected to testify. State v. Davis, Cuyahoga App.
No. 91324, 2009-Ohio-5217, ¶ 29-30.
       {¶ 2} In its memorandum in support of jurisdiction and in its appellate
brief, the state represents that the court of appeals has now recognized a new form
of structural error that is contrary to controlling precedent of this court. It further
asserts that the appellate court changed the standard for plain-error review when it
reversed Davis’s convictions without expressly stating in its opinion that the
spousal testimony had affected the outcome of the trial. An examination of the
court of appeals opinion reveals that it did not rely on, or even mention, the
structural-error doctrine in its decision, nor did it change the law regarding plain
error. Rather, the appellate court, relying on our decision in State v. Brown, 115
Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, formulated a conclusory
statement that the trial court had committed reversible plain error, but it never
actually performed a plain-error analysis in its opinion.               We accepted
discretionary jurisdiction over the cause. State v. Davis, 124 Ohio St.3d 1492,
2010-Ohio-670, 922 N.E.2d 227.
       {¶ 3} An appellate court may not reverse a conviction for plain error
based on the admission of spousal testimony in violation of Evid.R. 601(B) unless
it conducts a plain-error analysis pursuant to State v. Adamson (1995), 72 Ohio
St.3d 431, 650 N.E.2d 875, and determines that but for the error in admitting the
spouse’s testimony, the outcome of the trial would have been different and that
reversal is necessary to prevent a manifest miscarriage of justice.
       {¶ 4} Because the court of appeals did not perform a plain-error analysis
in this case, we reverse its judgment and remand for the court’s determination of
whether the outcome of the trial would have been different but for the error in
admitting the spousal testimony and whether reversal is necessary to prevent a
manifest miscarriage of justice.
                          Facts and Procedural History




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                                  January Term, 2010




        {¶ 5} Based on the trial testimony of D.T.1 and D.T.2, the record reveals
that in 1999, William N. Davis began to sexually abuse D.T.1, the nine-year-old
niece of his wife, Alberta Davis, by fondling her. On another occasion, Davis
digitally penetrated her vagina. After that incident, D.T.1.’s mother, Deshawn
Treadwell, noticed blood on the child’s underwear, but assumed that D.T.1 had
begun menstruating. At that time, D.T.1 did not reveal the abuse.
        {¶ 6} When she was 10 or 11 years old, D.T.1 visited her aunt Alberta to
help her with work around the house and with shopping. While Alberta was
occupied in the kitchen, Davis engaged in sexual intercourse with D.T.1 in the
bedroom. On more occasions over the next several years, he raped and sexually
abused D.T.1 when she visited her aunt, with the most recent rape occurring in
2005 when D.T.1 was 15 years old. Around the time that Davis ended the sexual
abuse of D.T.1, however, he fondled D.T.1’s younger sister, D.T.2, on two
separate occasions.
        {¶ 7} In September 2006, D.T.1 told her mother that Davis had raped
her. Treadwell then contacted the police, and the ensuing investigation resulted in
a 31-count indictment against Davis for rape and gross sexual imposition.
        {¶ 8} After the jury had been impaneled, a juror disclosed that she had
been the victim of domestic violence and could not serve on the jury. Dismissal
of this juror resulted in a panel of 11 jurors. Although both the state and Davis
agreed to proceed with only 11 jurors, the trial court discharged the jury and
continued the trial to a later date.
        {¶ 9} At trial the next month, the state subpoenaed Alberta to testify
against her husband in its case-in-chief.     Davis did not object to his wife’s
testimony, and the trial court, contrary to Evid.R. 601(B)(2), neither informed her
that she could choose not to testify against her husband nor found that she had
voluntarily elected to testify.




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        {¶ 10} During direct examination, Alberta revealed that she and her
husband had decided to move to Columbus after the allegations of sexual abuse
surfaced, and she admitted that Davis had left a job in Cleveland without having a
job in Columbus.
        {¶ 11} In addition, the prosecutor asked Alberta whether she had intended
to speak with her younger niece, D.T.2, about these allegations. When she denied
wanting to talk to D.T.2, the prosecutor asked her to affirm that she would not lie
to the jury. At that point, the prosecutor played a recorded telephone conversation
between Alberta and her husband during which she agreed to record a
conversation with D.T.2. The state characterized this effort as part of a plan to
discredit the victim and exonerate Davis. When Alberta testified that she had
wanted to tape D.T.2 only to help her (Alberta) to remember the conversation, the
state moved to treat her as a hostile witness, asserting that she had schemed with
Davis to record conversations with the victim in order to undermine the child’s
testimony.
        {¶ 12} The state then elicited admissions that she had lied to the jury
about not wanting to speak to D.T.2 and that she had told Davis that they could
move someplace where he could avoid being around children. She also admitted
that Davis had suggested “getting someone to whip [D.T.1.’s] ass.”
        {¶ 13} When the state rested its case, the court dismissed eight counts of
the indictment. Defense counsel did not recall Alberta to testify, and Davis chose
not to testify.
        {¶ 14} The jury returned verdicts of guilt on all counts, and the trial court
journalized convictions for six counts of rape in violation of R.C.
2907.02(A)(1)(b), 13 counts of rape in violation of R.C. 2907.02(A)(2), one count
of gross sexual imposition in violation of R.C. 2907.05(A)(1), and three counts of
gross sexual imposition in violation of R.C. 2907.05(A)(4), sentencing Davis to
life in prison and a $415,000 fine.




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                                January Term, 2010




       {¶ 15} Davis appealed to the Eighth District Court of Appeals, arguing
that discharging the first jury and impaneling a second jury put him twice in
jeopardy for the same offense.       The appellate court rejected this argument,
holding that the trial court had acted within its discretion in declaring a mistrial.
Davis, 2009-Ohio-5217, ¶ 25-26. However, the court raised sua sponte the issue
of Alberta Davis’s competency to testify against her husband, explaining that
pursuant to Evid.R. 601(B), a person is incompetent to testify against her spouse
unless, inter alia, she elects to testify. Id. at ¶ 28. Relying on State v. Brown, 115
Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, and State v. Adamson (1995),
72 Ohio St.3d 431, 650 N.E.2d 875, the appellate court stated that the failure of a
trial court to instruct a spouse on competency and to make a finding on the record
that the spouse voluntarily chose to testify constitutes reversible plain error.
Davis, 2009-Ohio-5217, ¶ 28. Because the trial court failed to give an appropriate
instruction or to make the requisite finding of fact, the appellate court considered
itself “compelled to remand this case for a new trial, given the mandates in Brown
and Adamson.” Id. at ¶ 30.
       {¶ 16} The state now appeals to this court, contending that the appellate
court treated the trial court error as requiring automatic reversal and urging:
“Where no objection is made to spousal testimony, a court's failure to inform the
spouse of competency under Evid.R. 601 is not structural error requiring reversal
but may be noticed as plain error.” Although the state concedes that the trial court
erred because it “did not determine whether Mrs. Davis was competent to testify
under Evid.R. 601(B),” it argues that the court of appeals should not have
reversed Davis’s convictions and remanded for a new trial without first
determining “that, but for the error, the outcome at trial would be different.”
       {¶ 17} Davis does not dispute that a violation of Evid.R. 601(B) is
reviewable only for plain error when the accused has not objected to the
testimony of a spouse at trial. He frames the main issue in this case as whether a



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court of appeals, in conducting a plain-error analysis, is required to expressly state
that but for the error, the outcome at trial would have been different.            He
maintains that the court of appeals applied a plain-error analysis and that it
reached the correct result because the spousal testimony prejudiced his defense.
In particular, Davis notes that his wife had been caught lying to the jury and
testified that she would move with her husband where he could avoid being
around children, suggesting her belief in his guilt.
           {¶ 18} Thus, we are concerned with the proper method for reviewing the
admission of spousal testimony in violation of Evid.R. 601(B) when the accused
fails to object: whether it is structural error requiring reversal without a showing
of prejudice to the accused, or whether it is plain error subject to a determination
that but for the error, the outcome of the trial would have been different.
                         Competency of Spousal Testimony
           {¶ 19} Evid.R. 601 provides: “Every person is competent to be a witness
except * * * (B) A spouse testifying against the other spouse charged with a crime
except when either of the following applies: (1) a crime against the testifying
spouse or a child of either spouse is charged; (2) the testifying spouse elects to
testify.”
           {¶ 20} Construing this rule in Brown, we explained that “ ‘a spouse
remains incompetent to testify until she makes a deliberate choice to testify, with
knowledge of her right to refuse. The trial judge must take an active role in
determining competency, and must make an affirmative determination on the
record that the spouse has elected to testify.’ ” Id., 115 Ohio St.3d 55, 2007-Ohio-
4837, 873 N.E.2d 858, at ¶ 54, quoting Adamson, 72 Ohio St.3d 431, 650 N.E.2d
875, syllabus. In Brown, we recognized that the failure of the trial court to
instruct the witness on spousal competency and to make a finding on the record
that the spouse voluntarily chose to testify “constitutes reversible plain error.” Id.
at ¶ 60.




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                                 January Term, 2010




       {¶ 21} Admittedly, our statement in Brown that a violation of Evid.R.
601(B) “constitutes reversible plain error” may have been misunderstood to mean
that the admission of incompetent spousal testimony is structural error requiring
automatic reversal without consideration of whether the testimony prejudiced the
accused.
       {¶ 22} We discussed the structural-error doctrine in State v. Perry, 101
Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, explaining that certain
constitutional errors “ ‘ “defy analysis by ‘harmless error’ standards” because
they “affect[ ] the framework within which the trial proceeds, rather than simply
[being] an error in the trial process itself.” ’ ” Id. at ¶ 17, quoting State v. Fisher,
99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 10, quoting Arizona v.
Fulminante (1991), 499 U.S. 279, 309 and 310, 111 S.Ct. 1246, 113 L.Ed.2d 302.
Because structural error permeates “ ‘[t]he entire conduct of the trial from
beginning to end’ so that the trial cannot ‘ “reliably serve its function as a vehicle
for determination of guilt or innocence,” ’ ” it is deemed prejudicial per se and
requires an automatic reversal. Perry at ¶ 17, quoting Fulminante, 499 U.S. at
309-310, 111 S.Ct. 1246, 113 L.Ed.2d 302, quoting Rose v. Clark (1986), 478
U.S. 570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460. However, courts recognize
structural error “only in a ‘ “very limited class of cases.” ’ ” Perry at ¶ 18,
quoting Neder v. United States (1999), 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d
35, quoting Johnson v. United States (1997), 520 U.S. 461, 468, 117 S.Ct. 1544,
137 L.Ed.2d 718.
       {¶ 23} A trial court’s error in failing to comply with Evid.R. 601(B)
neither necessarily permeates the entire trial nor prevents the trial from reliably
serving its function as a vehicle for determining guilt or innocence. To the
contrary, Evid.R. 601(B) excludes evidence that is relevant to the ascertainment
of truth. Notably, the testimony of the spouse of the accused is not deemed
incompetent because of its inherent unreliability, but rather to uphold “the policy



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of protecting the marital relationship from ‘dissension’ and the ‘natural
repugnance’ for convicting a defendant upon the testimony of his or her ‘intimate
life partner.’ ” Giannelli & Snyder, Evidence (2d Ed.2001) 387, Section 601.8,
quoting 8 Wigmore, Evidence (McNaughton Rev.1961) 216-217, Section 2228.
A violation of Evid.R. 601(B) therefore is not structural error requiring automatic
reversal.
        {¶ 24} Thus, in Adamson, we applied a plain-error analysis in reviewing
the trial court’s failure to determine the competency of the accused’s spouse to
testify against him when that error had not been brought to the attention of the
trial court in the first instance. We stated: “[A]lthough Adamson’s counsel failed
to object to the error at trial, the error rises to the level of reversible plain error.
Pursuant to the terms of Crim.R. 52(B), plain errors or defects which affect
substantial rights may be grounds for reversal even though they were not brought
to the attention of the trial court. ‘Notice of plain error under Crim.R. 52(B) is to
be taken with the utmost caution, under exceptional circumstances and only to
prevent a manifest miscarriage of justice.’ State v. Long (1978), 53 Ohio St.2d 91,
7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus. ‘Plain error does
not exist unless it can be said that but for the error, the outcome of the trial would
clearly have been otherwise.’ State v. Moreland (1990), 50 Ohio St.3d 58, 62, 552
N.E.2d 894, 899.” Adamson, 72 Ohio St.3d at 434-435, 650 N.E.2d 875.
        {¶ 25} We did not overrule or limit Adamson in Brown. Rather, the issue
in Brown involved defense counsel’s failure to request a determination that the
accused and a witness of the state were in fact married. Thus, we did not apply a
plain-error analysis, because the error, if any, rested with defense counsel, not the
trial court.   Holding that Brown received ineffective assistance of counsel,
however, we concluded that “[he] was prejudiced by trial counsel’s failure to
properly raise the issue of Wright’s competence to testify.” (Emphasis added.)
Brown, 115 Ohio St.3d 55, 2007-Ohio-4837, 873 N.E.2d 858, at ¶ 64.




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       {¶ 26} We therefore clarify our statement in Brown that a violation of
Evid.R. 601(B) “constitutes reversible plain error.” Id. at ¶ 60. An appellate
court may not reverse a conviction for plain error based on the admission of
spousal testimony in violation of Evid.R. 601(B) unless it conducts a plain-error
analysis pursuant to Adamson, 72 Ohio St.3d 431, 650 N.E.2d 875, and
determines that but for the error in admitting the spouse’s testimony, the outcome
of the trial would have been different and that reversal is necessary to prevent a
manifest miscarriage of justice.
       {¶ 27} Here, Alberta Davis appeared in response to a subpoena issued by
the prosecutor and testified in the state’s case-in-chief. As we explained in
Adamson, “[j]ust because a spouse responds to a subpoena and appears on the
witness stand does not mean that she has elected to testify.” Adamson, 72 Ohio
St.3d at 434, 650 N.E.2d 875. Because the record does not show that the trial
court informed her that she could choose not to testify against her husband or that
it found that she had voluntarily elected to testify, the court committed a plain or
obvious error in admitting her testimony. See id. (it is “clearly error” to order a
spouse to testify against the accused).
       {¶ 28} However, the court of appeals did not complete a plain-error
analysis in this case, because it did not determine whether, but for the trial court
error in admitting spousal testimony, the outcome of the trial would have been
different, and it did not decide that reversal is necessary to prevent a manifest
miscarriage of justice.
       {¶ 29} Our decisions in Brown and Adamson do not require a reversal for
plain error in all instances in which a trial court, without objection, admits spousal
testimony in violation of Evid.R. 601(B). Rather, before noticing plain error and
reversing a conviction, appellate courts should conduct a plain-error analysis and
determine that but for the error in admitting spousal testimony, the outcome of the
trial would have been different and that reversal is necessary to prevent a manifest



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miscarriage of justice. Because the court of appeals did not conduct a plain-error
analysis before reversing Davis’s convictions, its judgment is reversed, and this
matter is remanded for further proceedings consistent with this opinion.
                                                               Judgment reversed
                                                             and cause remanded.
        BROWN, C.J.,      and    PFEIFER, LUNDBERG STRATTON, O’CONNOR,
LANZINGER, and CUPP, JJ., concur.
                                __________________
       William D. Mason, Cuyahoga County Prosecuting Attorney, and T. Allan
Regas and Brent C. Kirvel, Assistant Prosecuting Attorneys, for appellant.
       Timothy Young, Ohio Public Defender, and Katherine A. Szudy, Assistant
Public Defender, for appellee.
                           ______________________




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