[Cite as State v. O'Connell, 2020-Ohio-1369.]




                          IN THE COURT OF APPEALS
                 FIRST APPELLATE DISTRICT OF OHIO
                            HAMILTON COUNTY, OHIO




STATE OF OHIO,                                  :   APPEAL NOS. C-180600
                                                                C-180601
        Plaintiff-Appellee,                     :   TRIAL NOS. B-1605877
                                                                B-1802724
  vs.                                           :

DANIEL W. O’CONNELL II,                         :     O P I N I O N.

     Defendant-Appellant.                       :




Criminal Appeals From: Hamilton County Court of Common Pleas

Judgments Appealed From Are: Reversed and Cause Remanded

Date of Judgment Entry on Appeal: April 8, 2020


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,

Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
                        OHIO FIRST DISTRICT COURT OF APPEALS


BERGERON, Judge.

        {¶1}   Evid.R. 404(B) exists to guard against the “propensity” inference—in

other words, wielding past bad acts to prove action in conformity therewith, which

facilitates a conviction based on prior conduct rather than the evidence at hand. In

this prosecution for rape and gross sexual imposition, the state presented evidence of

allegations (not a conviction) that the defendant perpetrated similar conduct over 20

years earlier. The state insisted that such actions constituted a common “plan”

under Evid.R. 404(B), and the trial court agreed, admitting this evidence without any

limiting instruction.     Our review convinces us that the trial court abused its

discretion in this regard, and given the prominence of this evidence at trial

(testimony the trial court described as “riveting”), we must reverse and remand for a

new trial.

                                          I.

        {¶2}   Underlying this case is a trio of victims, each related to defendant-

appellant Daniel O’Connell and each alleging that he sexually assaulted them at

various times. The allegations span decades and include conduct constituting gross

sexual imposition and rape perpetrated against the victims while in Mr. O’Connell’s

care.   After some of these allegations came to light, Mr. O’Connell was indicted in

2017 on charges involving gross sexual imposition, felonious sexual penetration, and

rape. The genesis of these indictments flowed from allegations of sexual abuse made

by Mr. O’Connell’s then nine-year-old daughter, K.O. Divulging these allegations to

her school counselor in 2016, K.O.’s accusations ultimately attracted the attention of

the authorities, but she subsequently recanted.

        {¶3}   Later, K.O. would return to her story, and she offered further

disclosures of more abuse. Eventually, these allegations prompted the state to revisit



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                      OHIO FIRST DISTRICT COURT OF APPEALS


sexual abuse claims lodged by another of Mr. O’Connell’s daughters, T.P., and his

cousin, K.L., years prior, which were not pursued at the time of their reporting.

Therefore, the 2017 indictment also included one count each of rape and gross sexual

imposition of T.P., along with one count of rape and one count of felonious sexual

penetration based on K.L.’s allegations.

       {¶4}    The state encountered problems with the prosecution as it related to

K.L., since those assaults allegedly occurred in 1995, more than 20 years prior to the

indictment and when Mr. O’Connell was younger than 15 years old. He accordingly

moved to dismiss, which the trial court eventually granted on statute of limitations

and jurisdictional grounds.

       {¶5}    Nevertheless, following Mr. O’Connell’s motion to dismiss the counts

related to K.L., the state tendered its “Notice of Intention to Use the Evidence,”

alerting the trial court of its intention to present K.L.’s testimony as evidence of

“other acts” of the “same and similar conduct” to “show the defendant’s scheme, plan

and system for carrying out the sexual abuse” and “to show the defendant’s intent,

plan and motive,” pursuant to R.C. 2945.59 and Evid.R. 404(B). Approximately a

month later, the state also marshalled a second indictment, based on further

disclosures by K.O., charging three additional counts of rape.

       {¶6}    As trial proceedings progressed, Mr. O’Connell objected to the state’s

request to introduce K.L.’s testimony, emphasizing the protections engrained in

Evid.R. 404(B). Defense counsel explained: “Your Honor, we’re talking now about

allegations that are over 20 years old. * * * And I believe that it is manifestly unfair *

* * to pile on witnesses in an attempt to sway the jury[.]” The trial court, however,

ultimately deemed the testimony admissible because the conduct was “pretty much

same and similar” to the charged offenses involving T.P. and K.O.



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                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶7}    K.L., T.P., and K.O. all proceeded to testify at trial, describing the

various instances of abuse they experienced. Mr. O’Connell took the stand in his own

defense, denying that he ever sexually abused his daughters or K.L. During cross-

examination, Mr. O’Connell endeavored to paint a conspiratorial portrait of his

daughters, positing that the girls had spent time together during holiday family

gatherings, enabling them an opportunity to collaborate on their accusations, egged

on by other adults such as K.O.’s mother and T.P.’s grandmother.

       {¶8}    The jury eventually convicted Mr. O’Connell on all but one charge, the

rape of T.P. Mr. O’Connell received five years on each of the three gross sexual

imposition charges and four life sentences without the possibility of parole for each

of the remaining rape charges, all to run consecutively.

       {¶9}    From these convictions Mr. O’Connell now appeals, raising five

assignments of error. Mr. O’Connell challenges the trial court’s admission of “other

acts” evidence via K.L.’s testimony and the trial court’s decision to allow written

transcripts as evidentiary exhibits. He also alleges ineffective assistance of counsel,

attacks his convictions as against both the sufficiency and weight of the evidence, and

criticizes his sentence as contrary to law.

                                                  II.

       {¶10} We begin with Mr. O’Connell’s first assignment of error, which we find

dispositive of this appeal. In his first assignment of error, Mr. O’Connell maintains

that the trial court erred in permitting K.L. to testify, as it violated the general

prohibition on propensity evidence, i.e., introducing a defendant’s past acts to prove

that he or she committed a charged offense by acting in conformity with a character

trait. We address first the state’s waiver argument before turning to the merits.




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                       OHIO FIRST DISTRICT COURT OF APPEALS


                                          A.

       {¶11} Before addressing the merits of this assignment of error, we consider

the state’s suggestion on appeal that Mr. O’Connell waived this challenge by failing to

specifically object on Evid.R. 404(B) grounds. We find this unpersuasive, concluding

that he properly preserved the error.

       {¶12} Evid.R. 103(A)(1) provides that “[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right * * * is affected;

and * * * a timely objection * * * appears of record, stating the specific ground of

objection, if the specific ground was not apparent from the context[.]” (Emphasis

added.)       Upon review, the record reveals that the context surrounding Mr.

O’Connell’s objection sufficed to supply the specific grounds for the objection—

everyone understood that the state sought admission under this rule and that the

defense objected. Compare State v. Collins, 9th Dist. Summit No. 22333, 2005-

Ohio-2812, ¶ 14 (“While Appellant did not specifically cite Evid.R. 702(C) in his

objection to [the witness’s] testimony, the specific ground was apparent from the

context of the testimony.”) with State v. Smith, 2d Dist. Montgomery No. 21049,

2006-Ohio-4163, ¶ 43 (defendant’s one-word objection insufficient to preserve error

where “the specific ground would not have been apparent to the trial court from the

context.”).     Underscoring the point, defense counsel stressed the temporal

remoteness of K.L.’s allegations, arguing that the staleness of the two-decades old

accusations factored into the admissibility calculus of Evid.R. 404(B). See State v.

Miller, 2015-Ohio-519, 27 N.E.3d 564, ¶ 31 (8th Dist.), citing State v. Jones, 135 Ohio

St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 191 (noting that temporal remoteness

of 30-year-old threat and distinctness from the present circumstances “renders the

other-acts evidence non-probative in this matter.”); State v. Moore, 2012-Ohio-1958,



                                          5
                      OHIO FIRST DISTRICT COURT OF APPEALS


970 N.E.2d 1098, ¶ 88 (8th Dist.), citing State v. Burson, 38 Ohio St.2d 157, 159, 311

N.E.2d 526 (1974) (“[T]he prior act must not be too remote and must be closely

related in time and nature to the offense charged.”).

       {¶13} Nor need we speculate on this point.              Before admitting K.L.’s

testimony, the parties debated its admission and its propriety under Evid.R. 404(B).

After Mr. O’Connell’s counsel voiced concerns over the evidence, the trial court

recited the language of Evid.R. 404(B) verbatim. Later, when it ultimately admitted

the evidence, the trial court concluded, “I think it’s clearly 404(B),” to which defense

counsel inquired “[s]o our objection is preserved for the record[?]”         The court

agreed: “Yes, yeah.” The context surrounding the evidence’s admission sufficiently

indicated the grounds for the objection, obviating the need for defense counsel to

explore these points further simply for preservation’s sake.

                                          B.

       {¶14} Finding that Mr. O’Connell properly preserved his challenge, we turn

to the merits of the evidentiary question, which we review for an abuse of discretion.

See State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 19. A

trial court abuses its discretion when it acts unreasonably, arbitrarily, or

unconscionably in determining the evidentiary issue at hand.             See State v.

Hornschemeier, 2012-Ohio-2860, 973 N.E.2d 779, ¶ 34 (1st Dist.), quoting State v.

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 62.

       {¶15} Evidence of an individual’s “other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith.” Evid.R. 404(B).    The introduction of such evidence is limited in its

admissible scope out of concern that an accused may be convicted simply because he

or she is a bad person with a tendency to commit such acts, and also due to the risk



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                      OHIO FIRST DISTRICT COURT OF APPEALS


of tainting the jury’s perspective. See State v. Sellers, 1st Dist. Hamilton No. C-

140655, 2015-Ohio-4843, ¶ 13.

       {¶16} Under certain circumstances, however, such evidence may be

admissible for specific limited purposes, such as to demonstrate “proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or

accident.” Evid.R. 404(B); see R.C. 2945.59. But “[o]ther acts evidence is admissible

only when it ‘tends to show’ one of the material elements in the charged offense and

only when it is relevant to the proof of the accused’s guilt for such offense.” State v.

Cleaves, 6th Dist. Wood No. WD-18-032, 2020-Ohio-133, ¶ 26, quoting State v.

Curry, 43 Ohio St.2d 66, 68-69, 330 N.E.2d 720 (1975). And such exceptions must

be construed against admissibility, as our Supreme Court reminds us: “Because R.C.

2945.59 and Evid.R. 404(B) codify an exception to the common law with respect to

evidence of other acts of wrongdoing, they must be construed against admissibility,

and the standard for determining admissibility of such evidence is strict.” State v.

Broom, 40 Ohio St.3d 277, 282, 533 N.E.2d 682 (1988); Sellers at ¶ 14 (“These

exceptions are to be construed against admissibility, and the standard for

determining admissibility is strict.”).

       {¶17} Mindful of that interpretive lens, in State v. Williams, 134 Ohio St.3d

521, 2012-Ohio-5695, 983 N.E.2d 1278, the Ohio Supreme Court set forth a three-

part analysis for consideration of admissibility of other-acts evidence:

               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. Evid.R. 401. The next step is to consider whether evidence of

       the other crimes, wrongs, or acts is presented to prove the character of



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                      OHIO FIRST DISTRICT COURT OF APPEALS


       the accused in order to show activity in conformity therewith or whether

       the other acts evidence is presented for a legitimate purpose, such as

       those stated in Evid.R. 404(B). The third step is to consider whether the

       probative value of the other acts evidence is substantially outweighed by

       the danger of unfair prejudice. See Evid.R. 403.

Id. at ¶ 20.

       {¶18} Turning to the present case, in its notice of intention to use the “other

acts” evidence, the state cited “scheme, plan, and system” and “intent, plan, and

motive.” On appeal, the state contends that “K.L.’s testimony exposed the plan used

by [Mr.] O’Connell in perpetrating the offenses,” demonstrating that he “would use

the opportunity of being alone with a young female relative while in a position of

power * * * to have sexual contact,” and that this evidenced his “scheme” to exploit

such victims. The state appears to use interchangeably “scheme,” “system,” and

“plan” in its argument, but the thrust of the state’s position appears to be couched in

terms of demonstrating a “plan” of abuse. Pressed to clarify this point, the state at

oral argument embraced the “plan” exception as its pathway to admissibility for this

evidence.

       {¶19} To establish a “plan,” the state seizes on the commonality of these

offenses, portraying the victims as “young family members over whom [Mr.]

O’Connell used his position of authority for his own sexual interests,” which justifies,

in the state’s eyes, the trial court’s conclusion of “similar[ity]” of the acts. But our

perusal of the trial testimony reveals nothing in the way of a plan for purposes of

admissibility under Evid.R. 404(B). To demonstrate furtherance of a “plan,” other

acts must typically “ ‘form part of the immediate background of the crime charged, *

* * where the * * * evidence plays an integral part in explaining the sequence of



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                     OHIO FIRST DISTRICT COURT OF APPEALS


events and is necessary to give a complete picture of the alleged crime.’ ” State v.

Wilkins, 135 Ohio App.3d 26, 32, 732 N.E.2d 1021 (9th Dist.1999), quoting State v.

Thompson, 66 Ohio St.2d 496, 498, 422 N.E.2d 855 (1981) (finding testimony from

victim of rape committed by defendant 12 years prior inadmissible to demonstrate

common scheme, plan, or system). Commission of similar offenses does not render

such acts all part of the same “plan,” particularly when the acts are separated by

years, or in this case, decades. And on this point, the state offers nothing beyond

evidence of the crimes themselves, which courts uniformly deem insufficient to

establish a “plan” for Evid.R. 404(B) admissibility purposes. See In re C.T., 2013-

Ohio-2458, 991 N.E.2d 1171, ¶ 33 (8th Dist.) (allegations of engaging in certain

sexual acts with a prior victim was “conduct that goes to an element of the rape

offense itself, not a ‘scheme,’ ‘plan,’ or ‘method.’ ”); State v. McClellan, 5th Dist.

Stark No. 2017CA00193, 2018-Ohio-3355, ¶ 48 (other acts did not constitute

evidence of grooming of victims but “rather of independent criminal sexual acts on

the victim which are qualitatively the same as the charged offense[.]”).

       {¶20} This is not a case where the offenses reveal a particular modus

operandi or some other link between them. Indeed, while they all constitute types of

sexual abuse, the details certainly differ. For instance, K.L. testified that the abuse

occurred when she was approximately eight years old, as Mr. O’Connell (then 14)

babysat her.   She recounts that he forced her to touch his penis, and that he

committed an incident of digital vaginal penetration when he thought she was asleep.

T.P., for her part, testified that Mr. O’Connell inappropriately touched her as he

dried her off after a bath when she was three years old. With respect to K.O., she

testified to various instances of abuse, including multiple incidents of rape when she

was approximately six or seven years old. K.O. explained that these incidents



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                         OHIO FIRST DISTRICT COURT OF APPEALS


occurred as she slept in the family’s shared bed during visits with Mr. O’Connell.

Surveying the facts surrounding the alleged abuse, we fail to see how they

“constituted a unique behavioral footprint” to evidence a plan. See In re C.T. at ¶ 33;

State v. Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, ¶ 32 (no

evidence of preparation or plan where “[t]here were * * * differences between the

frequency and type of the sexual assaults.”).

       {¶21} Nor do we see evidence of grooming from which a “plan” might be

inferred. In Williams, the court found that the other acts evidence properly

demonstrated “motive, preparation, and plan” of the accused because the prior act

indicated that the accused “groomed” his victims to prepare them for sexual activity.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 22. The

defendant in that case befriended and mentored his victims, bought them gifts and

paid them to do odd jobs at his home, which constituted evidence of the defendant’s

plan, motive, and preparation. Id. at ¶ 3, 22; State v. Kaaz, 12th Dist. Clinton No.

CA2016-05-010, 2017-Ohio-5669, ¶ 44-45 (evidence demonstrated defendant’s

“intent, motive, preparation, and plan” who took “specific and repeated actions to

groom and normalize sexual behavior, including showing [the victims] nude

pictures, discussing genitalia, instructing them on sexual positions and gratification,

as well as intimate touching and kissing.”). Similar reasoning animated our decision

in State v. Smith, 1st Dist. Hamilton No. C-170335, 2018-Ohio-4615, appeal

accepted, 155 Ohio St.3d 1404, 2019-Ohio-943, 119 N.E.3d 432, in which the other

acts evidence (despite temporal remoteness) tended to show evidence of grooming

because the defendant showed each victim pornography and rubbed them with oil

prior to the abuse. Id. at ¶ 11 (other acts evidence relevant to demonstrate motive

and lack of accident).



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                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶22} In contrast, the state presented no evidence that Mr. O’Connell

“groomed” any of the victims, much less in the same manner. This case thus tracks

more closely with State v. Hernandez, where the court rejected the state’s contention

that a victim’s 20-plus-year-old abuse allegations demonstrated plan (or motive and

preparation) absent evidence of grooming and when differences existed between the

abusive encounters. The court explained that, though a familial relationship existed

between the defendant and victims, there was no indication that he groomed the

children prior to abuse and “[t]here were also differences between the frequency and

type of the sexual assaults.” Hernandez at ¶ 32.

       {¶23} Nor does “us[ing] the opportunity to be alone with a young female

relative” (as the state contends in its appellate brief) support evidence of a plan. See

In re C.T., 2013-Ohio-2458, 991 N.E.2d 1171, at ¶ 33 (“Finding an opportunity to be

alone with another is a necessary part of engaging in sexual conduct[.]”). That is

often just a necessary prerequisite of opportunity to commit the offense.

       {¶24} On this record, if we accepted the state’s argument, we would render

Evid.R. 404(B) a hollow letter, as it would throw open the gates for any prior bad

acts so long as they bore some similarity to the charged offenses and pave the way for

the very propensity inference that it was designed to counteract.

       {¶25} Finally, even if we broaden the aperture a bit, we also fail to see how

the evidence could be admissible to demonstrate the two other grounds in the state’s

notice of intent, i.e., Mr. O’Connell’s motive or intent. Here, Mr. O’Connell’s intent

was irrelevant given the age of the victims. See State v. Decker, 88 Ohio App.3d 544,

548, 624 N.E.2d 350 (1st Dist.1993), quoting R.C. 2945.59 (“[The defendant] denied

his involvement in these acts completely. Therefore, [the defendant’s] ‘motive or

intent * * * or [his] scheme, plan, or system in doing an act’ was not material.”);



                                          11
                        OHIO FIRST DISTRICT COURT OF APPEALS


Hernandez, 8th Dist. Cuyahoga No. 108265, 2019-Ohio-5242, at ¶ 29 (noting

inherent intent to obtain sexual gratification from rape and gross sexual imposition

of a child under 13 because consent not at issue). And other acts demonstrating

motive must be “ ‘ “of a character so related to the offense for which the defendant is

on trial that they have a logical connection therewith and may reasonably disclose a

motive or purpose for the commission of such offense.” ’ ” State v. Blankenburg, 197

Ohio App.3d 201, 2012-Ohio-1289, 966 N.E.2d 958, ¶ 83 (12th Dist.), quoting State

v. Craycraft, 12th Dist. Clermont Nos. CA2009-02-013 and CA2009-02-014, 2010-

Ohio-596, ¶ 27, rev’d on other grounds, 128 Ohio St.3d 337, 2010-Ohio-6332, 944

N.E.2d 220, quoting State v. Moore, 149 Ohio St. 266, 78 N.E.2d 365 (1948),

paragraph one of the syllabus. As already discussed, the other acts here, the alleged

decades-old abuse of K.L., are not “of a character so related to the offense” as to have

a logical connection to disclose Mr. O’Connell’s purpose in committing the charged

acts. Thus, we do not see where K.L.’s testimony “tended to show” any permissible

Evid.R. 404(B) exception. See Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983

N.E.2d 1278, at ¶ 22.

       {¶26} This discussion largely resolves the first two Williams considerations

because the evidence did not further any legitimate Evid.R. 404(B) purpose, and

without that, we fail to see how it even satisfies basic relevancy concerns. Lest any

doubt remain about how the state used the evidence at trial, the state laid that to rest

in closing, all but conceding the propensity nature of this evidence:

              I ask you to first of all consider this; the likelihood that not one,

              not two, but three people are bringing allegations against the

              defendant, involving the same thing[.] * * * And if you think

              about * * * [K.L.] * * * she’s not a victim in this indictment, I



                                           12
                      OHIO FIRST DISTRICT COURT OF APPEALS


              brought her in simply so that you could just have more

              information that shows that these girls couldn’t be making this

              up[.]

This is precisely the type of use of other acts evidence that Evid.R. 404(B) prohibits,

i.e., inviting an impermissible inference that because Mr. O’Connell may have

perpetrated a sexual offense against another female family member in the past, he

therefore is guilty in the current case. See State v. Patterson, 5th Dist. Stark No.

2017CA00022, 2017-Ohio-8970, ¶ 31 (“[W]e find the admission of the evidence

invited the jury to infer a lack of consent through the fact Appellant admittedly had

engaged in sexual conduct without consent in the 2007 case.”); Hernandez at ¶ 35

(“[N]oting the 25 year difference between when the abuse * * * allegedly occurred, we

find no legitimate purpose for which the evidence was admitted * * * other than to

show [the defendant] acted in conformity with his alleged past behavior.”); R.C.

2945.59.

       {¶27} Moreover, the trial court omitted any limiting instruction informing

the jury that this evidence was “not being offered to prove [the defendant’s]

character,” which can help mitigate the risk of unfair prejudice. See Williams at ¶ 23

(emphasizing significance of limiting instruction). And K.L.’s testimony, regarding

alleged acts that occurred over 20 years ago, lacks temporal proximity to the present

charged offenses. See Hernandez at ¶ 35 (noting 25-year span between other acts

evidence and charged offenses); State v. Tackett, 11th Dist. Ashtabula No. 2018-A-

0052, 2019-Ohio-5188, ¶ 54, quoting Burson, 38 Ohio St.2d at 159, 311 N.E.2d 526

(other acts evidence must have a “ ‘temporal, modal and situational relationship’ ” to

the charged offense). Thus, we conclude that K.L.’s testimony was offered for no




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legitimate purpose, but only to show that Mr. O’Connell acted in conformity with

past behavior to commit the charged offenses.

       {¶28} And as to Williams’s third prong, the probative value of the evidence

here is substantially outweighed by the danger of unfair prejudice. See Williams, 134

Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, at ¶ 24; Evid.R. 403. Again, we

note that no jury instruction was administered to limit the scope of the jury’s

consideration of this evidence. See Williams at ¶ 24. Moreover, even with a limiting

instruction, it may still prove insufficient to overcome the prejudice, especially in the

context of sexual assault and child molestation because “ ‘evidence of these past acts

poses a higher risk, on the whole, of influencing the jury to punish the defendant for

the similar act rather than the charged act.’ ” Hernandez at ¶ 37, quoting State v.

Miley, 5th Dist. Richland Nos. 2005-CA-67 and 2006-CA-14, 2006-Ohio-4670, ¶ 59.

       {¶29} The other acts evidence here involved alleged prior sexual abuse by

Mr. O’Connell on a young female family member during a case in which he faced

allegations of sexual abuse from his two, young daughters, rendering the prejudicial

impact fairly self-evident. See Hernandez at ¶ 38; State v. Hart, 2018-Ohio-3272,

118 N.E.3d 454, ¶ 40 (8th Dist.) (prejudice of other acts substantially outweighed the

probative value despite limiting instruction, where acts where “strikingly similar” but

similarities could be viewed simply as propensity evidence). As K.L.’s testimony

assumed little relevance other than to demonstrate that Mr. O’Connell acted in

conformity with an “alleged pattern of having committed prior acts of sexual abuse,”

its prejudicial effect substantially outweighed any probative value. See Hernandez at

¶ 36. That is particularly so since K.L. was an adult at the time she testified, and thus

lent an adult’s perspective (and credibility) to the accusations. Jurors often face a




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difficult time in assessing credibility of child witnesses, and thus an adult’s

confirmation can set their minds at ease.

       {¶30} Here the trial court deemed the other acts the “same” and “similar” to

the charged acts, but that short-circuits the analysis under Evid.R. 404(B) and would

risk reversing the strict presumption against admissibility for this caliber of

evidence. See State v. Green, 90 Ohio St.3d 352, 369, 738 N.E.2d 1208 (2000),

quoting Broom, 40 Ohio St.3d 277, 533 N.E.2d 682, at paragraph one of the syllabus

(“ ‘[T]he standard for determining admissibility of such evidence is strict.’ ”); Broom

at 282 (“Neither the rule nor the statute contains the words ‘like’ or ‘similar.’ ”);

Burson, 38 Ohio St.2d at 158, 311 N.E.2d 526 (addressing other acts under R.C.

2549.59: “Such evidence is admissible, not because it shows that the defendant is

crime prone, or even that he has committed an offense similar to the one in question,

but in spite of such facts.”). “The admissibility of other-acts evidence is carefully

limited, particularly in prosecutions for sexual offenses.” Decker, 88 Ohio App.3d at

548, 624 N.E.2d 350; State v. Robinson, 6th Dist. Lucas No. L-09-1001, 2010-Ohio-

4713, ¶ 25 (same). Discerning no appropriate, permissible evidentiary use for K.L.’s

testimony in the present case, we conclude that the trial court abused its discretion

and erred in its admission.

                                                 III.

       {¶31} Having found the admission of K.L.’s testimony erroneous, we must

now review for harmless error to determine if reversal is warranted. See State v.

Geary, 2016-Ohio-7001, 72 N.E.3d 153, ¶ 11 (1st Dist.); Crim.R. 52(A) (“Any error,

defect, irregularity, or variance which does not affect substantial rights shall be

disregarded.”). Harmless error review requires: (1) that the defendant be prejudiced

by the improper admission of the evidence, (2) that the appellate court believe the



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                     OHIO FIRST DISTRICT COURT OF APPEALS


error was not harmless beyond a reasonable doubt, and (3) upon excising the

improper    evidence,   a   determination     whether    the   remaining     evidence

overwhelmingly supports the defendant’s guilt. See State v. Morris, 141 Ohio St.3d

399, 2017-Ohio-5052, 24 N.E.3d 1153, ¶ 27-29.

       {¶32} At trial, Mr. O’Connell testified in his own defense, expressly denying

that the abuse of T.P. and K.O. occurred. In closing, the state capitalized on the

corroborative effect of K.L.’s testimony to bolster the testimony of T.P. and K.O. and

rebut Mr. O’Connell’s assertions. The corroborative weight of an independent adult

witness’s testimony cannot be ignored, especially as K.O. had previously recanted her

allegations against Mr. O’Connell and nearly 10 years elapsed since T.P. initially

alleged her abuse in 2008 when she was three years old. The trial court referred to

K.L.’s testimony as “riveting,” and the prosecution implored the jury to remember

K.L.’s testimony “when * * * trying to determine the credibility of [K.O.] and [T.P.]

and trying to decide whether or not the [s]tate has proved its case beyond a

reasonable doubt.”

       {¶33} Based on the foregoing, “there is a reasonable possibility that [K.L.’s]

testimony contributed to [Mr. O’Connell’s] convictions.” See State v. Harris, 142

Ohio St.3d 211, 2015-Ohio-166, 28 N.E.3d 1256, ¶ 39; Hart, 2018-Ohio-3272, 118

N.E.3d 454, at ¶ 42 (“[T]he jury’s determination was necessarily based on the

victim’s credibility vis-a-vis the defendant’s version of the facts. In a ‘he said/she

said’ case, where credibility is paramount, we cannot say that the erroneous

admission of other acts evidence was harmless.”). Therefore, we find that Mr.

O’Connell suffered prejudice by the erroneous admission of K.L.’s testimony and that

the error was not harmless beyond a reasonable doubt.




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                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶34} And surveying the remaining evidence, we do not see that

“overwhelming evidence of guilt” exists given the credibility battle at hand.

Patterson, 5th Dist. Stark No. 2017CA00022, 2017-Ohio-8970, at ¶ 38; see State v.

Thomas, 152 Ohio St.3d 15, 2017-Ohio-8011, 92 N.E.3d 821, ¶ 40, quoting State v.

Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, ¶ 158 (in excising this

testimony and surveying the strength of the remaining evidence, we note that the

error may be harmless “ ‘if there is substantial other evidence to support the guilty

verdict.’ ”). Like many sexual assault cases, this case involved no physical evidence of

the abuse. Therefore, the state’s case “hinged on the jury’s determination of whose

testimony was more credible”—Mr. O’Connell’s or the victims’. See Harris at ¶ 43.

And generally, reduction of evidence to credibility battles between witnesses falls

short of overwhelming evidence of guilt for purposes of harmless error review. See

Patterson at ¶ 38 (“In the instant case, there was not overwhelming evidence of guilt.

The case turned solely on a determination of credibility[.]”); State v. Cobia, 1st Dist.

Hamilton No. C-140058, 2015-Ohio-331, ¶ 22 (noting that entire case against the

defendant rested on the victim’s testimony and credibility, and that absent the

improper other acts evidence the evidence of guilt was not strong); State v. Hall, 1st

Dist. Hamilton Nos. C-170699 and C-170700, 2019-Ohio-2985, ¶ 25 (excising

improper evidence reduced the state’s case to a credibility battle between witnesses).

       {¶35} For these reasons, we conclude that the erroneous admission of K.L.’s

testimony cannot be brushed aside as “harmless error,” thus entitling Mr. O’Connell

to reversal and a new trial free from this prejudicial error.

                                                 IV.

       {¶36} Based on our disposition of Mr. O’Connell’s first assignment of error,

this renders most of his remaining assignments of error moot. Because of double-



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                      OHIO FIRST DISTRICT COURT OF APPEALS


jeopardy concerns, however, we must still address his sufficiency of the evidence

argument presented by his fourth assignment of error. See State v. Ramirez, Slip

Opinion No. 2020-Ohio-602, ¶ 11, quoting Burks v. United States, 437 U.S. 1, 11, 98

S.Ct. 2141, 57 L.Ed.2d 1 (1978) (“In assessing whether a criminal defendant can be

retried, a guiding principle is that ‘[t]he Double Jeopardy Clause forbids a second

trial for the purpose of affording the prosecution another opportunity to supply

evidence which it failed to muster in the first proceeding.’ ”); State v. Frederick, 9th

Dist. Wayne No. 18AP0005, 2020-Ohio-714, ¶ 19 (“While our resolution of [the

defendant’s] first assignment of error mandates reversal, we are compelled to

address his sufficiency challenges due to the constitutional protection against double

jeopardy.”). Sufficiency of the evidence review requires us to construe all reasonable

inferences in favor of the state, and determine whether any reasonable trier of fact

could find that the state presented evidence to prove each of the essential elements of

the offense beyond a reasonable doubt. State v. Jenks, 61 Ohio St.3d 259, 574

N.E.2d 492 (1991), paragraph two of the syllabus.

       {¶37} Mr. O’Connell insists that the lack of physical evidence of the abuse

translates into insufficient evidence to sustain his conviction. We are not persuaded,

however, as the state need not present corroborating physical evidence to meet its

burden of proof. See State v. Jeffries, 2018-Ohio-2160, 112 N.E.3d 417, ¶ 72 (1st

Dist.) (state not required to present corroborating physical evidence in rape cases);

State v. Lukacs, 188 Ohio App.3d 597, 2010-Ohio-2364, 936 N.E.2d 506, ¶ 58 (1st

Dist.) (“[N]o rule of law exists that a witness’s testimony must be corroborated by

physical evidence.”); State v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-

5502, ¶ 67 (record contained more than sufficient evidence in the form of witness

testimony to sustain the charges against the defendant).



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                      OHIO FIRST DISTRICT COURT OF APPEALS


       {¶38} Contrary to Mr. O’Connell’s assertion, T.P.’s and K.O.’s testimony

alone, if believed, sufficed to maintain convictions independent of any physical

corroboration. Here, our review of the record convinces us that the state met its

burden regarding the sufficiency of the evidence.           We accordingly overrule Mr.

O’Connell’s fourth assignment of error insofar as it relates to the sufficiency of the

evidence.

                                           V.

       {¶39} In conclusion, we sustain Mr. O’Connell’s first assignment of error,

overrule his fourth assignment of error as it relates to the sufficiency of the evidence,

and we decline to address his remaining assignments of error as they are moot. See

App.R.12(A)(1)(c). We accordingly reverse the trial court’s judgments and remand

this matter for a new trial consistent with this opinion.

                                            Judgments reversed and cause remanded.



MOCK, P.J., and WINKLER, J., concur.

Please note:
       The court has recorded its own entry this date.




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