[Cite as In re C.T., 2013-Ohio-2458.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 97278




                                         IN RE:    C.T.

                                        A MINOR CHILD




                                    JUDGMENT:
                              REVERSED AND REMANDED


                                      Civil Appeal from the
                             Cuyahoga County Court of Common Pleas
                                        Juvenile Division
                                     Case No. DL 10117417


        BEFORE: McCormack, J., Stewart, A.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: June 13, 2013


ATTORNEY FOR APPELLANT
Joseph J. Lanter
Abel & Zocolo Co., L.P.A.
815 Superior Avenue
Suite 1915
Cleveland, OH 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

Stephanie L. Lingle
T. Allan Regas
Assistant County Prosecutors
8th Floor Justice Center
1200 Ontario Street
Cleveland, OH 44113




TIM McCORMACK, J.:
       {¶1} This cause is before this court on remand from the Supreme Court of Ohio.

In this especially nuanced subject area of the Ohio Rules of Evidence, that being the

admissibility of other acts evidence, we now have clear guidance resulting from State v.

Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278. Williams clarified for

Ohio’s trial courts the application of both evidence Rule 404(B) and R.C. 2945.59.

Williams eliminates certain proscriptions for the introduction of other acts evidence under

both the statute and the rule; but equally as clear, Williams firmly restates those forms of

other acts evidence that would be, and are, clearly prejudicial to an accused.

       {¶2} Our task on remand is to carefully identify those nuances in this case and

apply the analysis provided in Williams. After applying the refined analysis to the other

acts evidence in this case, we conclude the other acts evidence is not admissible here

pursuant to Williams, and therefore, reverse and remand the matter to the juvenile court

for a new hearing.

                       Substantive Facts and Procedural History

       {¶3} In In re C.T., 8th Dist. No. 97278, 2012-Ohio-1644 (“C.T. I”), a prior panel

of this court relied upon the holding from this court’s en banc decision in State v.

Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1203 (8th Dist.)

(“Williams I”) and concluded that the other acts evidence in this case was inadmissible.

As a result, we reversed the trial court’s adjudication of C.T.   C.T. I was decided while

Williams I was pending before the Supreme Court of Ohio for its review.
        {¶4} The state appealed our decision in C.T. I to the Supreme Court, and the

court accepted the state’s appeal and held the case for its decision in the Williams case.

Subsequently, the court reversed Williams I, in State v. Williams, 134 Ohio St.3d 521,

2012-Ohio-5695, 983 N.E.2d 1278 (hereafter “Williams II”).        The court then issued an

order remanding C.T. I to this court for an application of Williams II.

                          Admissibility of Other Acts Evidence

        {¶5}   We begin our analysis with the recognition that 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, 330 N.E.2d 720 (1975).

        {¶6} Under the Ohio Rules of Evidence, evidence of “other crimes, wrongs, or

acts” is not admissible to prove a defendant’s character as to criminal propensity.    As

stated in Evid.R. 404(B), such evidence is inadmissible to prove “the character of a

person in order to show action in conformity therewith.”    However, the rule permits such

evidence to be introduced for other purposes, such as for “proof of motive, opportunity,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

Evid.R. 404(B).

        {¶7} R.C. 2945.59, which predates Evid.R. 404(B), codifies a similar principle.

It states:
              In 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, any acts of the defendant which tend
       to show his motive or intent, the absence of mistake or accident on his part,
       or the defendant’s scheme, plan, or system in doing the act in question may
       be proved, whether they are contemporaneous with or prior or subsequent
       thereto, notwithstanding that such proof may show or tend to show the
       commission of another crime by the defendant.

       {¶8} C.T. I was decided based on this court’s holding in Williams I. Therefore,

we begin with a discussion of Williams I and its reversal by the Supreme Court of Ohio.

                                       Williams I and II

       {¶9}    In Williams I, Williams was charged with multiple counts of raping a

14-year-old boy.    Williams met the boy at a church.         Williams bought him gifts

frequently and paid him to do odd jobs at his home, before beginning to sexually abuse

him.

       {¶10} The state introduced other acts evidence that showed that, 11 years earlier,

Williams preyed upon another 16-year-old boy, A.B., who was a member of the swim

team that Williams coached. A.B. testified at trial that his own father was not involved

in his life and he trusted Williams; he and Williams had a sexual relationship, including

kissing, masturbation, and oral sex.

       {¶11} The state argued the other acts evidence regarding Williams’s prior

calculated approach with A.B. was admissible on two bases: (1) to show that the intent of

Williams’s conduct in spending time with the boy was for the purpose of receiving sexual
gratification; and (2) to show Williams’s “scheme, plan or system” in grooming and

gaining the trust of young boys who lacked male role models.

       {¶12} This court disposed of the claim that the other acts evidence was to show

intent, and it focused on the state’s assertion the other acts evidence was to show

“scheme, plan, or system.”

       {¶13} Relying on State v. Curry, 43 Ohio St.2d 66, 68, 330 N.E.2d 720 (1975), we

stated that there are only two situations in which other acts evidence would be admissible

to show a defendant’s “scheme, plan, or system” — when the evidence is offered to show

(1) the background of the alleged crime, or (2) identity.      Williams I at ¶ 51.

       {¶14} Applying that rule, we determined that the other acts evidence could not be

admitted to show Williams’s “scheme, plan, or system,” because (1) the other act

occurred more than a decade ago and, therefore, did not form the background of the crime

at issue; and (2) identity was not at issue in the case.   Williams I at ¶ 58.

       {¶15} The Supreme Court of Ohio reversed our decision in Williams I, holding

the admissibility of “scheme, plan, or system” evidence is not limited to only those two

situations. Rather, the court explained that Evid.R. 404(B) affords the trial court broad

discretion regarding the admission of other acts evidence.            To properly exercise that

discretion, the trial court should engage in a three-step analysis.

              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 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.

Williams II at ¶ 20.

       {¶16} Applying the first step, the Supreme Court of Ohio determined that the prior

victim’s testimony was relevant because it tended to show the motive Williams had and

the preparation and plan he exhibited in targeting, mentoring, grooming, and abusing

teenage boys.   The court also determined that the prior victim’s testimony that Williams

received “some type of sexual gratification” is also relevant to show that Williams’s

intent in cultivating his relationship with young boys was sexual gratification. Id. at ¶

22.

       {¶17} Applying the second step, which, as the Supreme Court of Ohio explained,

relates to whether the evidence is presented to prove the accused’s character and to show

the conduct was in conformity with that character.     The court determined the state did

not offer the other acts evidence to show conforming conduct — the court pointed out the

trial court gave two limiting instructions to the jury that the evidence was not being

offered to prove Williams’s character and the jury was presumed to have followed those

instructions. Id. at ¶ 23.

       {¶18} Applying the third step, the court considered whether the probative value of

the other acts evidence of the prior relationship was substantially outweighed by the
danger of unfair prejudice. The court concluded this evidence was not unduly prejudicial,

because the trial court instructed the jury that this evidence could not be considered to

show that Williams had acted in conformity with a character trait.        This instruction

lessened the prejudicial effect of the prior victim’s testimony.

       {¶19} Pursuant to the three-step analysis, the court, therefore, concluded Evid.R.

404(B) permitted the admission of evidence regarding Williams’s prior crime, as it helped

to prove motive, preparation, and plan on the part of Williams, and the prejudicial effect

did not substantially outweigh the probative value of that evidence. Id. at ¶ 24.

                                           C.T. I

       {¶20} With this background in mind, we turn to the instant case. The trial court

found C.T. delinquent for raping an acquaintance from his school.          The      pertinent

facts of the case were set forth in C.T. I at ¶ 4-12, which we adopt and repeat verbatim in

the following:

              At trial, K.W. testified that she met C.T. in the high school band. As
       they traveled to a football game in different buses, K.W. initiated contact
       with C.T. by sending a text message to his cell phone. K.W. indicated she
       and her friends were reading about “sex and porn.” K.W. and C.T. sat
       near each other during portions of the football game and then left on their
       separate buses where they resumed a text messaging phone conversation.
       They discussed “hanging out” together that night. C.T. suggested that they
       should “hang out” in K.W.’s car; to which K.W. replied, “We shall. [F]ind
       me.”

              Both K.W. and C.T. testified that they met each other at a party after
       the football game as planned and that K.W.’s mother was acting as a
       chaperone. K.W.’s mother recalled extending her daughter’s curfew that
       night.
       As C.T. was walking K.W. to her car, K.W. either agreed or offered
to drive C.T. home. Both said C.T. was holding K.W.’s hand as she drove.
 According to C.T., they passed a street and wound up parking in a
cul-de-sac with poor lighting. According to K.W., she initially believed
C.T. lived in that area. In either case, both said they began talking.

       C.T. and K.W. then described a similar course of events where K.W.
moved (or was assisted by C.T.) into the passenger side of the vehicle
where C.T. was sitting. They began kissing. K.W. helped remove her
sweatshirt and shirt and C.T. removed his penis from his pants. He asked
K.W. to perform oral sex, and she indicated she had never done so before;
to which C.T. responded that there was a first time for everything. K.W.
performed oral sex on C.T., and he penetrated her vaginally with his
fingers.

        K.W. testified that she told C.T. she did not want to engage in this
activity and told C.T. to stop. C.T. testified that K.W. never said anything or
gave any indication to him that the activity was anything other than
consensual. K.W. said she complied because she was fearful of C.T. but
admitted he did not threaten her verbally or physically.

       At one point, K.W. returned to the driver’s seat to check her phone.
Her mother told her she needed to come home. According to C.T., K.W.
said they could resume the sexual activity the next day. But, at C.T.’s
request, she resumed performing oral sex upon C.T. K.W. said she did this
just to get it over with and get out of the situation. C.T. wiped his hands
with a tissue that he discarded out the window and onto the street.

       C.T. testified that K.W. asked him if they were dating and seemed
happy to know he was considering it. When K.W. returned home, she sent a
cell phone text message to C.T. She invited C.T. to get together the next day
but he said he could not because he was in trouble. Then, K.W. went to
lunch with a friend and told her about her sexual encounter with C.T. Later
that day, K.W. was on the bus with other band members when another
teenager, B.T., called her outside to talk. B.T. asked K.W. about the
allegations she had made against C.T. C.T. was standing nearby. C.T.
denied that he forced K.W. to do anything. At this point, K.W. called her
parents to pick her up and told her parents she had been raped by C.T.
              K.W. was taken to the police station and then the hospital for an
       examination. As part of her statement to an examining nurse, K.W.
       indicated that she was aware that C.T. had “been in trouble with girls
       before, but [she] didn’t want to believe it.”

               More than once during her testimony, K.W. confirmed that if C.T.
       had indicated to her that they were boyfriend and girlfriend, they would not
       be in court. On redirect examination, however, K.W. indicated that even if
       C.T. had said she was his girlfriend, she would still say she was raped by
       him.

       {¶21} The other acts evidence in this case came from C.T.’s own testimony.

Under cross-examination by the state, C.T. stated he previously pleaded delinquent to a

charge of gross sexual imposition after a girl accused him of forcefully making her

perform oral sex on him and also digitally penetrating her.   Regarding the circumstances

surrounding that incident, C.T. testified only that “[s]he said she had to go to the garage

so she had shoes. That put us alone.” C.T.’s own brief testimony is the other acts

evidence that the state claimed to be admissible to establish (1) C.T.’s modus operandi (2)

and a lack of mistake concerning consent.

       {¶22} Following the bench trial, the trial court found C.T. delinquent and

sentenced him to the Ohio Department of Youth Services for a minimum period of 12

months and a maximum period not to exceed the age of 21.

       {¶23} On appeal, C.T. raised several assignments of error.     The first assignment

of error, which was the focus in our prior decision, and is again the focus in this decision

on remand, concerns whether the trial court erred by permitting evidence of C.T.’s prior

offense to be admitted.   The state contended that C.T.’s prior delinquency case, which it
argued involved an activity that was essentially identical in C.T.’s modus operandi, or

behavioral footprint, “proved that he had a specific method of how he rapes young

women.”

       {¶24} Relying exclusively on this court’s holding in Williams I, the prior panel

concluded C.T.’s previous delinquency adjudication was not admissible to show a

“scheme, plan, or system,” because the prior incident did not form the background of the

instant case and identity was not at issue.

       {¶25} Based on Williams II, the Supreme Court of Ohio reversed C.T.I., and

remanded the case to this court for an application of Williams II. In re C.T., 135 Ohio

St.3d 133, 2012-Ohio-5886, 984 N.E.2d 1055.                  Both parties have submitted

supplemental briefs for our consideration.

                                 Application of Williams II

       {¶26} As instructed, we now apply the three-step analysis set forth in Williams II

to assess the admissibility of the other acts evidence in this case.

                          First Part of Williams Test: Relevancy

       {¶27} The first part of the test asks whether the evidence was relevant to a fact of

consequence.    Williams II at ¶ 20.      In Williams II, the victim in the prior incident

testified extensively at trial regarding the defendant’s calculated conduct leading to the

eventual sexual abuse.      The conduct paralleled Williams’s conduct with the present

victim.   In both incidents, Williams had targeted teenage males who had no father
figure, in order to gain their trust and confidence and groom them for subsequent sexual

activities.   Based on these facts, the court determined that evidence of Williams’s prior

offense was relevant “because it tended to show the motive Williams had and the

preparation and plan he exhibited of targeting, mentoring, grooming, and abusing teenage

boys.” Williams II at ¶ 22.     “Evidence that Williams had targeted teenage males who

had no father figure to gain their trust and confidence and groom them for sexual activity

with the intent of sexual gratification may be admitted to show the plan of the accused

and the intent for sexual gratification.” Id. at ¶ 25.

       {¶28} In contrast to Williams, the only other acts evidence here consists of C.T.’s

own brief testimony that he was found delinquent to gross sexual imposition where

another teenage girl accused him of forcing her to perform oral sex on him and also

digitally penetrating her.   The incident occurred in a garage, where she had gone to get

her shoes and he went there with her.

       {¶29} The state contends C.T.’s prior adjudication was relevant to prove (1) C.T.’s

lack of mistake, and (2) C.T.’s “scheme, plan, and system.”

       {¶30} First, regarding the lack of mistake, the state argues C.T. “had a history of

claiming that he thought his victims were consenting and was, perhaps, mistaken in his

understanding of how consent is communicated.”           The state, therefore, used his prior

admission to similar conduct to show that he could not have been mistaken, once again,
when the exact same behavior landed him in trouble in the juvenile court the last time he

did it.

          {¶31} This exception is not applicable to the facts at issue in this case. C.T. did

not testify that he was mistaken about whether K.W. consented or not. Rather, C.T.

alleged K.W. consented to the sexual conduct and K.W. testified she did not. Their

testimony conflicted directly. If C.T. had testified K.W. said “no,” but he thought she

still consented, then the mistake on C.T.’s part, or lack thereof, would be placed in issue.

That is not the case here.

          {¶32} Second, the state claims the two cases show similar modus operandi, or

behavioral fingerprint, on the part of C.T., in that in both cases he found an opportunity to

be alone with a young female, and forcibly engaged in oral sex and digital penetration of

the girl.     The state argues this shows C.T. had a specific method of raping young

women, and this modus operandi demonstrates a pattern of conduct that is excepted in

Evid.R. 404(B).

          {¶33} In sharp contrast to Williams, C.T.’s conduct in both incidents hardly

constituted a unique behavioral footprint.       Finding an opportunity to be alone with

another is a necessary part of engaging in sexual conduct, whether lawfully or not.    As to

the allegation of engaging in unconsented oral sex and digital penetration, this is conduct

that goes to an element of the rape offense itself, not a “scheme,” “plan,” or “method.”

In addition, in Williams, the defendant spent an extended period of time grooming the
victim for the eventual purpose of sexual gratification.        Here the entire incident

involving two teen-aged schoolmates occurred, seemingly spontaneously, during the time

span of one evening in a jointly arranged encounter.   They were acquaintances of similar

age.   Unlike Williams, there is no evidence here demonstrating a unique behavioral

footprint, and therefore, the previous adjudication of delinquency is not relevant to

making any fact that is of consequence to the determination of whether C.T. engaged in

sexual conduct with K.W. without consent.

                   Second Part of Williams Test: Purpose of Evidence

       {¶34} The second part of the Williams test questions the state’s purpose in

introducing the other acts evidence, i.e., whether it was to show propensity.   Id. In this

case, the defendant did not deny the sexual conduct occurred.      The only issue for the

trier of fact to determine was whether there was consent.   Essentially, the state asked the

trial court to infer a lack of consent through the consideration of the prior case, where

C.T. was found to engage in unconsented sexual conduct. This is exactly what the rule

prohibits — to prove that C.T. had a propensity to engage in sexual conduct with a female

without consent.

                        Third Part of Williams Test: Prejudice

       {¶35} The third part of the Williams test asks whether the probative value of the

other acts evidence at issue is outweighed by its prejudicial effect. Williams at ¶ 20.

Both parties in this case testified that sexual activity occurred. C.T. testified that K.W.
consented.   K.W. testified she did not.    This is a classic “he said she said” case, and the

entire case hinges on the parties’ credibility.   The admission of evidence showing C.T.

had previously engaged in unconsented sexual conduct certainly tips the scales of

credibility in favor of the prosecution’s claim. The trial court appeared to have, indeed,

resolved the conflicts in the testimony by considering the prior delinquency adjudication:

in the judgment entry, the trial court specifically stated that it found C.T. delinquent based

on the totality of the evidence including evidence of modus operandi.          Therefore, the

other acts evidence in this case is highly prejudicial and, thus, in violation of Evid.R. 403.

       {¶36} Having assiduously applied the three-step analysis set forth in Williams II,

we conclude C.T.’s prior adjudication of delinquency is inadmissible other acts evidence.

 Such information should have been excluded by the trial court. Its improper admission

prejudiced C.T. in violation of the basic tenet of Evid.R. 404(B).

       {¶37} The first assignment of error is sustained and the remaining assignments of

error are rendered moot.    Accordingly, we reverse C.T.’s adjudication and remand the

matter to the juvenile court for a new hearing.

       {¶38} Judgment reversed, adjudication vacated, and cause remanded.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court, juvenile court division, to carry this judgment into execution.
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.


__________________________________________
TIM McCORMACK, JUDGE

MELODY J. STEWART, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
