[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as
State v. Morris, Slip Opinion No. 2014-Ohio-5052.]




                                        NOTICE
     This slip opinion is subject to formal revision before it is published in
     an advance sheet of the Ohio Official Reports. Readers are requested
     to promptly notify the Reporter of Decisions, Supreme Court of Ohio,
     65 South Front Street, Columbus, Ohio 43215, of any typographical or
     other formal errors in the opinion, in order that corrections may be
     made before the opinion is published.




                         SLIP OPINION NO. 2014-OHIO-5052
              THE STATE OF OHIO, APPELLANT, v. MORRIS, APPELLEE.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Morris, Slip Opinion No. 2014-Ohio-5052.]
Criminal procedure—Appeals—Standard of review for determining harmlessness
        of erroneously admitted evidence.
 (No. 2013-0251—Submitted February 2, 2014—Decided November 20, 2014.)
              APPEAL from the Court of Appeals for Medina County,
                         No. 09CA0022-M, 2012-Ohio-6151.
                          ___________________________


                               SYLLABUS OF THE COURT
        In determining whether to grant a new trial as a result of the
                erroneous admission of evidence under Evid.R. 404(B),
                             SUPREME COURT OF OHIO




               an appellate court must consider both the impact of the
               offending evidence on the verdict and the strength of the
               remaining evidence after the tainted evidence is
               removed from the record.
                      ___________________________________


       LANZINGER, J.
       {¶ 1} This is the second time we have had this case before us. Previously,
we remanded the cause to the Ninth District Court of Appeals to consider whether
the trial court abused its discretion in admitting other-acts evidence under Evid.R.
404(B) during the trial of Carl M. Morris on two counts of rape of his minor
stepdaughter. 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, reversing
9th Dist. Medina No. 09CA0022-M, 2010-Ohio-4282. On remand, the court of
appeals vacated Morris’s conviction and ordered a new trial. Although there was
no majority opinion, the court apparently found that the trial court did abuse its
discretion by admitting impermissible evidence. One judge also determined that
this error, coupled with the state’s repeated references to the improper character
evidence, violated Morris’s due-process right to a fair trial, concluding that there
was “a reasonable possibility that the improper evidence may have contributed to
the conviction” and therefore that the error could not be determined to be
harmless beyond a reasonable doubt. 2012-Ohio-6151, 985 N.E.2d 274, ¶ 60.
       {¶ 2} We now affirm the judgment of the court of appeals that the
appropriate remedy for the improper admission of other-acts evidence under
Evid.R. 404(B) in this case is a new trial.
                              The Evidence at Trial
       {¶ 3} The state charged Morris with two counts of rape of his minor
stepdaughter, S.K., under R.C. 2907.02, a first-degree felony.




                                          2
                               January Term, 2014




Testimony of S.K.
       {¶ 4} S.K. was 15 at the time of trial and testified to events that allegedly
occurred when she was six or seven when she lived with her mother, older half-
sister, grandmother, and stepfather Morris. She testified to Morris’s card tricks
and magic tricks that included asking her to touch his thumb, which was covered
by a towel. He would then make his thumb turn to Jell-O and then get hard again.
S.K. asserted that Morris’s “thumb” was actually his penis. She testified that
Morris began lying by her on the couch masturbating, while he rubbed her thigh.
When she was in the first grade, Morris began touching her vagina with his hand.
S.K. testified that Morris sexually molested her as many as 30 times and that
every time, he ejaculated into a towel. Morris told her not to tell anyone what he
was doing.
       {¶ 5} S.K. testified that she could not recall all the dates, but recalled two
specific times that Morris raped her. The first occurred on April 22, 2003, on the
day that her mother went to the hospital. She was then nine. A second rape
occurred late in October 2005, which she recalled because she was watching a
Halloween television show. As she grew older, she began to realize that Morris’s
conduct was improper.
       {¶ 6} When asked if Morris’s actions were ever interrupted, S.K. testified
that one time, her sister came “hurtling down the stairs,” causing Morris to jump
and cover himself. S.K. remembered another incident when she and Morris were
on the couch and he had a hand down his pants and the other on her thigh, and her
mother came down the stairs silently and called out Morris’s name, which caused
him to jump.
       {¶ 7} After her grandmother died in September 2006, S.K. testified, she
rebuffed Morris’s advances and he eventually stopped. Shortly before Christmas
2007, six months after Morris moved out of the house, S.K. told her parents that
Morris had raped her.




                                         3
                             SUPREME COURT OF OHIO




Testimony of S.K.’s Sister
       {¶ 8} S.K.’s sister testified that in 2005 when she was 19, Morris had
grabbed her and stated: “You don’t know what I would do to you but your mother
would get mad.” Although she believed that Morris’s statement was sexual in
nature, she “laughed it off,” thinking he was intoxicated.
       {¶ 9} At this point, Morris objected to the line of questioning on the
grounds that it was prejudicial. The court admitted the testimony under Evid.R.
404(B) to prove “motive, opportunity, intent, preparation, plan, knowledge, or
absence” and offered to give a cautionary instruction to the jury prior to the jury’s
deliberation; the defense accepted that offer.     S.K.’s sister then testified that
Morris apologized the next day, explaining that he had been drunk.               She
confirmed that she had seen Morris drinking the night of the incident. She also
testified that when she told her mother about the incident, Morris was kicked out
of the house for a day. Finally, the sister testified that although Morris and S.K.
had been close, seeing them under a blanket together made her feel
uncomfortable.
Testimony of S.K.’s Mother
       {¶ 10} S.K.’s mother confirmed that Morris performed magic tricks for the
family. She testified that one night she came downstairs, causing both Morris and
S.K. to jump off the sofa “real quick,” and that S.K. went to the bathroom. She
asked her daughter if everything was ok, and S.K. said yes. The mother testified
that she suspected that something was happening between S.K. and Morris but
that she believed S.K.’s response.
       {¶ 11} S.K.’s mother also testified that if she refused to have sex with
Morris, he sometimes kicked the dog. Finally, she testified that Morris ejaculated
into a tee shirt or a towel after they had sex. Morris objected. The trial court
overruled his objection, but permitted a continuing objection to the line of inquiry




                                         4
                                January Term, 2014




regarding the sexual relationship between Morris and S.K.’s mother. The state
argued that because Morris allegedly engaged in this behavior with both S.K. and
her mother, it was evidence of his “modus operandi, knowledge, and other acts of
evidence.” The trial court agreed with the state and admitted this evidence under
Evid.R. 404(B).
       {¶ 12} In testifying that shortly before Christmas 2007 she and S.K.’s
father were told of Morris’s sexual molestation of S.K. , S.K.’s mother stated that
she “never saw [S.K.] like that. She was so upset. She was red and pulling her
head and crying.”
Testimony of Dr. Keck
       {¶ 13} Dr. Gregory Keck, a psychologist, testified that during treatment
with him S.K. stated that she had been sexually abused by Morris. She also told
Dr. Keck about Morris’s magic trick in which he used a towel to cover his
“thumb.” Dr. Keck testified that although he could not be certain whether a
patient was telling the truth, he had no reason to disbelieve S.K.’s assertions
regarding Morris. Dr. Keck testified that use of magic tricks is a method that
pedophiles use to groom their victims for sexual activity.
Prosecutor’s statements
       {¶ 14} During closing argument, the prosecutor discussed Morris’s
propositioning of S.K.’s sister, stating that she was


         [t]oo smart for [Morris], maybe too old too, I don’t know. You
         see, she looked pretty young. * * * She would know what’s
         wrong but you see even when his inhibitions were down when
         he would be drunk, if you want to know a little bit about, and
         there will be an instruction on this, if you want to know a little
         bit about his motives and his intent and his intent for this
         victim, just look at how he treated his other stepdaughter * * *.




                                          5
                             SUPREME COURT OF OHIO




(Emphasis added.)
       {¶ 15} In his closing, defense counsel addressed Morris’s propositioning of
S.K.’s sister by saying, “Did you hear anything about [Morris] ever sexually
coming on to her over the course of many years? Absolutely not.” Later, he
stated: “It’s easy to isolate a particular theme within a particular context and say
that this is further evidence of somebody who would engage in sexual
molestation.”
       {¶ 16} In his rebuttal, the prosecutor referred to the sister as being the
victim of a “sexual come-on” by Morris.
Jury Instruction
       {¶ 17} After the closing arguments concluded, the trial judge gave the jury
the following instruction:


                Evidence received about the commission of acts other
          than the offense with which the Defendant is charged in this
          trial. The evidence was received only for a limited purpose.
          It was not received, and you may not consider it, to prove the
          character of the Defendant in order to show that he acted in
          conformity or in accordance with that character. If you find
          that the evidence of other crimes or acts is true and that the
          Defendant committed it, you may consider that evidence
          only for the purpose of deciding whether it proves the
          absence of mistake or accident, or the Defendant’s motive,
          opportunity, intent or purpose, preparation or plan to commit
          the offense charged in this trial or knowledge or
          circumstances surrounding the offense charged in this trial or




                                          6
                               January Term, 2014




          the identity of the person who committed the offense in this
          trial.
               That evidence cannot be considered for any other
          purpose.


The jury convicted Morris of both counts of rape.
                              Procedure on Appeal
First Appellate Review
       {¶ 18} On appeal, Morris argued that the proposition evidence and the
evidence that he kicked the dog were admitted in contravention of Evid.R.
404(B). The court of appeals in a two-to-one decision held that the evidence was
not admissible to prove motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident and that the trial court erred in
admitting this evidence. 2010-Ohio-4282 at ¶ 25, 32. The court of appeals said
that S.K.’s mother’s testimony that Morris would kick the dog out of sexual
frustration should have been excluded because it had no relevance to any fact at
issue in the case and was intended only to show defendant’s character as mean
and aggressive. The court also said that the sexual-proposition testimony from
S.K.’s sister should have been excluded because the challenged testimony did not
describe how the other act was a part of a single criminal transaction involving the
criminal charges but instead described a wholly unrelated incident. It therefore
reversed Morris’s convictions, remanding the case for a new trial. Id. at ¶ 44.
       {¶ 19} We accepted the state’s appeal, in which the state asserted that “the
court of appeals erred in applying a de novo standard of review to the
admissibility of ‘other acts’ evidence and substituted its own judgment for that of
the trial court.” 128 Ohio St.3d 1448, 2011-Ohio-1618, 944 N.E.2d 697. We
held, “Trial court decisions regarding the admissibility of other-acts evidence
under Evid.R. 404(B) are evidentiary determinations that rest within the sound




                                         7
                            SUPREME COURT OF OHIO




discretion of the trial court. Appeals of such decisions are considered by an
appellate court under an abuse-of-discretion standard of review.” 132 Ohio St.3d
337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus. Accordingly, we reversed the
judgment of the court of appeals and remanded the matter to the court of appeals
“to apply an abuse-of-discretion standard.” Id. at ¶ 23.
Second Appellate Review
        {¶ 20} On remand, the court of appeals again reversed the conviction. An
opinion by Judge Dickinson stated that the trial court had abused its discretion in
admitting the proposition evidence and the kick-the-dog evidence. 2012-Ohio-
6151, 985 N.E.2d 274, ¶ 40, 44. Quoting this court’s decision in State v. Bayless,
48 Ohio St.2d 73, 106, 357 N.E.2d 1035 (1976), vacated on other grounds, 438
U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155, the opinion stated that the court could
hold that the erroneously admitted other-acts evidence was harmless only if it
could “ ‘declare a belief that the error was harmless beyond a reasonable doubt.’ ”
Id. at ¶ 50. Judge Dickinson concluded, “The State’s repeated references to
improper character evidence violated Mr. Morris’s right to a fair trial.” Id. at
¶ 60.
        {¶ 21} We accepted the state’s appeal. The state’s proposition of law is
“When reviewing allegedly erroneous admission of evidence, an appellate court
should analyze whether substantial other evidence supports the verdict.” 136
Ohio St.3d 1406, 2013-Ohio-2645, 989 N.E.2d 1021.


                                  Legal Analysis
Harmless Error
        {¶ 22} The parties distinguish the standard of review of harmless error
based on whether the rights affected by the error are constitutional or
nonconstitutional rights. The state argues that improper admission of Evid.R.
404(B) evidence does not involve the violation of a constitutional right and




                                         8
                               January Term, 2014




therefore that the nonconstitutional harmless-error standard of review set out in
State v. Webb, 70 Ohio St.3d 325, 335, 638 N.E.2d 1023 (1994), applies. Webb
held that nonconstitutional error is harmless if there is substantial other evidence
to support the guilty verdict.     On the other hand, Morris argues that the
erroneously admitted Evid.R. 404(B) evidence prejudicially violated his right to a
fair trial, requiring application of the constitutional harmless-error standard of
review set out in State v. Crawford, 32 Ohio St.2d 254, 255, 291 N.E.2d 450
(1972), which held that constitutional error is harmless if it is harmless beyond a
reasonable doubt.
       {¶ 23} But in actuality, the Ohio Rules of Criminal Procedure do not
specifically use the words “constitutional” or “nonconstitutional” to divide the
standard of review in this way. Crim.R. 52(A) defines harmless error in the
context of criminal cases and provides: “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” During a
harmless-error inquiry, the state has the burden of proving that the error did not
affect the substantial rights of the defendant. State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 15. Furthermore, if there is “a ‘[d]eviation
from a legal rule,’ ” courts undertake a “ ‘harmless error’ inquiry—to determine
whether the error ‘affect[ed] substantial rights’ of the criminal defendant.” State
v. Fischer, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting
United States v. Olano, 507 U.S. 725, 732-733, 734, 113 S.Ct. 1770, 123 L.Ed.2d
508 (1993). The term “substantial rights” has been interpreted to require that
“ ‘the error must have been prejudicial.’ (Emphasis added.)” Id., quoting Olano
at 734.   If a court determines that the error did not affect the defendant’s
substantial rights, then the error is harmless and “ ‘shall be discarded.’ ” Id.,
quoting Crim.R. 52(A).
       {¶ 24} Thus Crim.R. 52(A), the harmless-error rule, was created in
essence to forgive technical mistakes.       But rather than distinguish between




                                         9
                            SUPREME COURT OF OHIO




constitutional and nonconstitutional rights, the rule asks whether the rights
affected are “substantial.” And the second important question is what happens if
substantial rights are affected. Not every error requires that a conviction be
vacated or a new trial granted. R.C. 2945.83 states:


               No motion for a new trial shall be granted or verdict set aside,
       nor shall any judgment of conviction be reversed in any court
       because of:
               ***
               (C) The admission or rejection of any evidence offered
       against or for the accused unless it affirmatively appears on the
       record that the accused was or may have been prejudiced thereby.


(Emphasis added.)
       {¶ 25} And so the real issue when Evid.R. 404(B) evidence is improperly
admitted at trial is whether a defendant has suffered any prejudice as a result. If
not, the error may be disregarded as harmless error. And while courts may
determine prejudice in a number of ways and use language that may differ, they
focus on both the impact that the offending evidence had on the verdict and the
strength of the remaining evidence. Both the error’s impact on the verdict and the
weight of the remaining evidence must be considered on appellate review.
Ohio Case Law
       {¶ 26} We disagree with the state’s position that Ohio law is inconsistent
on harmless error. Erroneous admission of Evid.R. 404(B) evidence is a singular
problem. “Prosecution evidence that a defendant has committed other crimes,
wrongs or acts independent of the offense for which he is on trial is not generally
admissible to demonstrate that the defendant has a propensity for crime or that his
character is in conformity with the other acts.” State v. Mann, 19 Ohio St.3d 34,




                                        10
                               January Term, 2014




482 N.E.2d 592 (1985), paragraph one of the syllabus. The question is when an
improper admission affects the defendant’s “substantial rights” so that a new trial
is required as a remedy. Several principles emerge from our cases.
       {¶ 27} First, there must be prejudice to the defendant as a result of the
admission of the improper evidence at trial. “[A] judgment of conviction should
not be reversed because of ‘the admission * * * of any evidence offered against
* * * the accused unless it affirmatively appears on the record that the accused
was or may have been prejudiced thereby.’ ” State v. Crawford, 32 Ohio St.2d
254, 255, 291 N.E.2d 450 (1972), quoting R.C. 2945.83(C). See, e.g., State v.
Abrams, 39 Ohio St.2d 53, 56, 313 N.E.2d 823 (1974) (same requirement in
considering improper judge-jury communications).
       {¶ 28} Second, an appellate court must declare a belief that the error was
not harmless beyond a reasonable doubt. Id.; Crawford; Chapman v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395
U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969); State v. Bayless, 48 Ohio St.2d
73, 106, 357 N.E.2d 1035 (1976), vacated in part on other grounds, 438 U.S. 911,
98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978); accord State v. Lytle, 48 Ohio St.2d 391,
358 N.E.2d 623 (1976), paragraph three of the syllabus (“Error in the admission
of other act testimony is harmless when there is no reasonable possibility that the
testimony contributed to the accused’s conviction”), vacated in part on other
grounds, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978).
       {¶ 29} Third, in determining whether a new trial is required or the error is
harmless beyond a reasonable doubt, the court must excise the improper evidence
from the record and then look to the remaining evidence. In a case dealing with
the improper admission of privileged spousal testimony, we stated that “ ‘the
cases where imposition of harmless error is appropriate must involve either
overwhelming evidence of guilt or some other indicia that the error did not
contribute to the conviction.’ ” State v. Rahman, 23 Ohio St.3d 146, 151, 492




                                        11
                              SUPREME COURT OF OHIO




N.E.2d 401 (1986), quoting State v. Ferguson, 5 Ohio St.3d 160, 166, 450 N.E.2d
265 (1983), fn. 5. But in reviewing the remaining evidence, we cautioned, “We
are also mindful that our role upon review of this 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.” Id. at fn. 4.
          {¶ 30} Here, the lead opinion of the Ninth District Court of Appeals
considered both the prejudice to Morris and the remaining evidence.                It
determined that the trial court had erroneously admitted inflammatory Evid.R.
404(B) evidence in a case that was not strong. There was no physical evidence,
and there were questions regarding the credibility of Morris’s stepdaughter S.K.,
the main witness.       Furthermore, the opinion emphasized that the state had
repeatedly referred to the evidence in its closing argument. These improper
statements were thus highlighted for the jury. Given the weakness of the evidence
that remained, the opinion deemed that a new trial was necessary because the
court could not find beyond a reasonable doubt that the improper evidence had no
effect. The only remedy for the prejudice was a new trial.
          {¶ 31} We ourselves have considered that the actions of a prosecutor may
combine with an evidentiary error to cause greater impact. In a capital case in
which we vacated a death sentence and remanded the case for resentencing
pursuant to R.C. 2929.06, the trial court had allowed gruesome slides to be
admitted into evidence during the guilt phase. State v. Thompson, 33 Ohio St.3d
1, 15, 514 N.E.2d 407 (1987).         Although the conviction was unaffected, in
considering the penalty phase when the prosecutor emphasized this evidence, we
stated:


          The prosecutor’s subsequent reference to those same slides at the
          penalty phase was impermissible. * * * [H]is entreaty that the jury
          should remember the slides could have had no other effect than to




                                          12
                                January Term, 2014




       cause the jurors to re-experience the horror and outrage they must
       have felt upon viewing the slides earlier in the trial. This later use
       of the slides to appeal to the jurors’ emotions and to prejudice them
       against the appellant is grounds for reversal.
Id.
       {¶ 32} In other words, blatant prejudice may override even a strong case
and require a new trial. As noted, however, an improper evidentiary admission
under Evid.R. 404(B) may be deemed harmless error on review when, after the
tainted evidence is removed, the remaining evidence is overwhelming. State v.
Williams, 6 Ohio St.3d 281, 290, 452 N.E.2d 1323 (1983), quoting Harrington v.
California, 395 U.S. at 254, 89 S.Ct. 1726, 23 L.Ed.2d 284.
The Webb Case
       {¶ 33} The state relies upon the statement that “[n]onconstitutional error is
harmless if there is substantial other evidence to support the guilty verdict.” State
v. Webb, 70 Ohio St.3d at 335, 638 N.E.2d 1023. As indicated earlier, both the
nature of the error and the prejudice to defendant (the measure of how the error
affected the verdict) are important. Appellate judges upon review determine these
issues and decide which trial errors are harmless and which instead necessitate the
remedy of reversal and new trial. Although the language used by the courts may
vary, the principles themselves are clear: That is, technical error will be ignored
under Crim.R. 52(A); structural error will result in automatic reversal, State v.
Fischer, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222; and evidence
errors that are prejudicial because they improperly affect the verdict will be
excised from the record with the remaining evidence weighed to see if there is
evidence beyond a reasonable doubt of the appellant’s guilt, State v. Rahman, 23
Ohio St.3d at 150, 492 N.E.2d 401. Therefore, we hold that in determining
whether to grant a new trial as a result of the erroneous admission of evidence
under Evid.R. 404(B), an appellate court must consider both the impact of the




                                         13
                             SUPREME COURT OF OHIO




offending evidence on the verdict and the strength of the remaining evidence after
the tainted evidence is removed from the record.
                                    Conclusion
       {¶ 34} The Ninth District has twice reviewed the record and held that this
evidence was improperly admitted. We affirm the judgment of the court of
appeals vacating the conviction and granting a new trial.
                                                                Judgment affirmed.
       O’CONNOR, C.J., and PFEIFER, and O’NEILL, JJ., concur.
       KENNEDY, and FRENCH, JJ., dissent.
       O’DONNELL, J., dissents.
                         ________________________________


       KENNEDY, J., dissenting.
       {¶ 35} Respectfully, I dissent.
                                    Introduction
       {¶ 36} I agree with the state insofar as I categorically reject the majority’s
position that Ohio law is consistent in the test that is applied to determine whether
improperly admitted other-acts evidence is harmless error. I further reject the
majority’s attempt to disavow our precedent that distinguishes between
constitutional and nonconstitutional harmless error while in effect adopting the
constitutional, “beyond a reasonable doubt” harmless-error test as the second
prong of its test for erroneously admitted other-act evidence. In my view, this
wrongly elevates the improper admission of other-acts evidence to the level of an
error of constitutional import. I would hold that the improper admission of other-
acts evidence involves a nonconstitutional error, and in order to settle Ohio law, I
would adopt the federal circuit courts’ nonconstitutional harmless-error test
originally set forth in United States v. Kotteakos, 328 U.S. 750, 66 S.Ct. 1239, 90
L.Ed.2d 1557 (1946), which provides that “without stripping the erroneous action




                                         14
                                January Term, 2014




from the whole,” an error is harmless if the outcome was “not substantially
swayed by the error.”       Id at 765.    I would further hold that making this
determination requires a case-by-case inquiry of the centrality of the evidence,
limiting instructions, and other relevant factors set forth below.
                             Ohio Law Is Inconsistent
       {¶ 37} The majority finds no inconsistency in Ohio law regarding the
harmless-error analysis of improperly admitted other-acts evidence. I disagree.
       {¶ 38} This court has applied the constitutional harmless-error standard of
review in some cases. E.g., State v. Lytle, 48 Ohio St.2d 391, 404, 358 N.E.2d
623 (1976) (the court held that there was “no reasonable possibility that the
improperly-admitted ‘other act’ testimony contributed to the appellant’s
conviction, and * * * that the error committed was harmless beyond a reasonable
doubt”), vacated in part on other grounds, 438 U.S. 910, 98 S.Ct. 3135, 57
L.Ed.2d 1154 (1978); State v. Gumm, 73 Ohio St.3d 413, 425-426, 653 N.E.2d
253 (1995) (the court was convinced beyond a reasonable doubt that the
defendant would have been convicted even without the improperly admitted
evidence).
       {¶ 39} But in other cases, this court has applied the nonconstitutional
“substantial other evidence” harmless-error standard of review as set out in State
v. Webb, 70 Ohio St.3d 325, 638 N.E.2d 1023 (1994). E.g., State v. Getsy, 84
Ohio St.3d 180, 192-193, 702 N.E.2d 866 (1998) (other-acts evidence was
improperly admitted, but the error was harmless because the “evidence against
Getsy was substantial”); and State v. Brown, 100 Ohio St.3d 51, 56-57, 796
N.E.2d 506 (testimony that Brown was in a gang was improperly admitted, but
the error was harmless “given the substantial evidence of [Brown’s] guilt”).
       {¶ 40} Many Ohio appellate districts apply a constitutional harmless-error
standard of review in determining whether improperly admitted other-acts
evidence is harmless. E.g., State v. Williams, 1st Dist. Hamilton Nos. C-060631




                                          15
                                SUPREME COURT OF OHIO




and C-060668, 2007-Ohio-5577, ¶ 38, 39; State v. Dotson, 2d Dist. Clark No.
Civ.A.2003 CA 34, 2004-Ohio-6875, ¶ 17; State v. Elliot, 91 Ohio App.3d 763,
771, 633 N.E.2d 1144 (3d Dist.1993); State v. Davis, 7th Dist. Mahoning No. 08
MA 236, 2011-Ohio-292, ¶ 67; State v. Watson, 9th Dist. Summit No. 25915,
2012-Ohio-1624, ¶ 22; State v. Jackson, 10th Dist. Franklin No. 02AP-867, 2003-
Ohio-6183, ¶ 32; State v. Foster, 11th Dist. Portage No. 2004-P-0104, 2005-Ohio-
5281, ¶ 59; State v. Perkins, 12th Dist. Clinton No. CA2005-01-002, 2005-Ohio-
6557, ¶ 11. However, at least two districts currently apply the nonconstitutional
substantial-other-evidence harmless-error standard of review set out in Webb.
State v. Murphy, 4th Dist. Scioto No. 09CA3311, 2010-Ohio-5031, ¶ 80; and
State v. Ceron, 8th Dist. Cuyahoga No. 99388, 2013-Ohio-5241, ¶ 97.
        {¶ 41} Therefore, contrary to the majority opinion, I agree with the state
and believe that Ohio law is inconsistent in its harmless-error review of
improperly admitted other-acts evidence and that this inconsistency must be
rectified.
The Law Recognizes a Distinction Between Constitutional and Nonconstitutional
                                     Harmless Error
        {¶ 42} In reaching its determination, the majority ignores the distinction
between constitutional and nonconstitutional harmless error on the basis that the
language in Crim.R. 52 fails to expressly recognize the distinction. Crim.R.
52(A) does state that “[a]ny error * * * which does not affect substantial rights
shall be disregarded.” However, well-settled case law recognizes a distinction
between constitutional and nonconstitutional errors when employing the
harmless-error analysis. The distinction is important because it imposes different
standards of review depending upon the nature of the error involved.


             A constitutional error is harmless if it appears “beyond a
             reasonable doubt that the error complained of did not contribute




                                           16
                                January Term, 2014




         to the verdict obtained.” Chapman v. California, 386 U.S. 18,
         24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705 (1967). By contrast, the
         standard for nonconstitutional error, as set forth in Kotteakos v.
         United States, provides that such an error is harmless if it did
         not have a “substantial and injurious effect or influence in
         determining the jury’s verdict.” 328 U.S. 750, 776, 66 S.Ct.
         1239, 1253, 90 L.Ed.2d 1557 (1946).


(Emphasis added; citations omitted.) United States v. Powell, 334 F.3d
42, 45 (D.C.Cir.2003).
        {¶ 43} This   court   has   also    recognized    the   distinction   between
constitutional and nonconstitutional harmless errors in Ohio. See State v. Powell,
132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 63, 64. Accordingly,
the majority improperly disregards this well-settled distinction in its analysis.
        {¶ 44} Moreover, the determination of the majority that Crim.R. 52 fails to
expressly distinguish constitutional and nonconstitutional harmless error raises the
question of whether the majority is disavowing this distinction in all harmless-
error cases, only in harmless-error cases involving other-act evidence, or in just
this case.
         The Majority Adopts the Constitutional Harmless-Error Analysis
        {¶ 45} In determining whether improperly admitted other-acts evidence is
harmless, the majority holds that “an appellate court must consider both the
impact of the offending evidence on the verdict and the strength of the remaining
evidence after the tainted evidence is removed from the record.” (Emphasis
added.) Majority opinion at syllabus. According to the majority, courts must first
ask: Is the evidence prejudicial? If it is, then the reviewing court must determine,
improperly admitted other-acts evidence aside, whether it is convinced beyond a
reasonable doubt that there is overwhelming evidence against the defendant.




                                           17
                             SUPREME COURT OF OHIO




Despite purportedly rejecting the constitutional/nonconstitutional distinction, the
majority has nevertheless apparently adopted the constitutional harmless-error
standard of review. See United States v. Estrella, 518 Fed.Appx. 822, 825, 2013
WL 1943433, *2 (11th Cir.2013) (“Moreover, even if Estrella could establish a
constitutional violation, any error in admitting his comments concerning the
robbery of Detective Lebid would have been harmless beyond a reasonable doubt
in light of the overwhelming evidence of Estrella’s guilt”).
      Improperly Admitted Other-Acts Evidence Is Nonconstitutional Error
       {¶ 46} I believe that the majority’s holding has erroneously elevated the
improper admission of other-acts evidence to the status of constitutional error for
purposes of harmless-error determination.        Although courts recognize that
improper admission of other-acts evidence may result in a violation of the
defendant’s constitutional right to a fair trial, the error in the admission of the
evidence originates from a violation of Evid.R. 404(B). See generally State v.
Wegmann, 3d Dist. Allen No. 1-06-98, 2008-Ohio-622, ¶ 42. Therefore, the
violation of a rule, including Evid.R. 404, implicates a nonconstitutional
harmless-error analysis. See Murphy Dewine, 6th Cir. No. 1:1-cv-581, 2012 WL
2357391 (June 19, 2012); United States v. Moncayo, 440 Fed.Appx. 647, 656
(10th Cir.2011); and United States v. Boateng, 81 F.3d 170, unpublished opinion;
text at 1996 WL 155154, *1 (9th Cir.1996). Because the error herein originates
from a violation of Evid.R. 404(B), I agree with the state’s proposition of law that
the nonconstitutional harmless-error standard of review applies, contrary to the
majority’s holding.
       {¶ 47} However, I believe that the nonconstitutional harmless-error test set
out in Webb is inadequate to address whether improperly admitted other-acts
evidence is harmless. Under Webb, an error is harmless if there is substantial
other evidence to support the verdict. Therefore, under Webb, a court would not
inquire as to whether improperly admitted other-acts evidence affected the




                                         18
                                January Term, 2014




outcome of the case, and yet precluding a jury from considering whether a
defendant acted in conformity with a prior bad act is precisely the purpose of
excluding evidence under Evid.R. 404(B). State v. Nichols, 10th Dist. Franklin
No. 97APA09-1162, 1998 WL 226430, * 3 (May 5, 1998) (the risk of other-acts
evidence is that the jury will use it to “infer character and conformity therewith”).
Therefore, instead of relying on Webb, I would look to the federal
nonconstitutional harmless-error standard of review as set out in Kotteakos, 328
U.S. 750, 66 S.Ct. 1239, 90 L.Ed.2d 1557. See United States v. Lane, 474 U.S.
438, 446, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986), fn. 9 (recognizing that Kotteakos
sets out the harmless-error “standard for nonconstitutional errors”).
       {¶ 48} In Kotteakos, the issue was “whether [defendants] * * * suffered
substantial prejudice from being convicted of a single general conspiracy by
evidence which * * * proved not one conspiracy but some eight or more different
ones of the same sort executed through a common key figure.” Kotteakos, 328
U.S. at 752.    In determining whether the error was harmless, the court in
Kotteakos stated that “[t]he crucial thing is the impact of the thing done wrong on
the minds of [the jury] * * * in the total setting.” Id. at 764. The court elaborated:


         [I]f one cannot say, with fair assurance, after pondering all that
         happened without stripping the erroneous action from the
         whole, that the judgment was not substantially swayed by the
         error, it is impossible to conclude that substantial rights were
         not affected. The inquiry cannot be merely whether there was
         enough to support the result, apart from the phase affected by
         the error. It is rather, even so, whether the error itself had
         substantial influence. If so, or if one is left in grave doubt, the
         conviction cannot stand.




                                         19
                             SUPREME COURT OF OHIO




Id. at 765.
        {¶ 49} Unlike Webb, which holds that an error is harmless if there is
substantial other evidence to support the verdict, Kotteakos requires courts to
consider the effect of the error on the outcome of the trial within the context of the
entire record.
        {¶ 50} The First, Fourth, Sixth, Seventh, and Tenth Federal Circuit Courts
of Appeals, as well as the Court of Appeals for the District of Columbia, have
adopted the Kotteakos nonconstitutional harmless-error standard of review for the
purpose of determining whether improperly admitted other-acts evidence is
harmless.     United States v. Garcia-Rosa, 876 F.2d 209, 222 (1st Cir.1989),
vacated on other grounds sub nom. Rivera-Feliciano v. United States, 498 U.S.
954, 111 S.Ct. 377, 112 L.Ed.2d 391 (1990); United States v. Byers, 649 F.3d
197, 211 (4th Cir.2011); United States v. Corsmeier, 617 F.3d 417, 422 (6th
Cir.2010), fn. 3; United States v. Hill, 898 F.2d 72, 75-76 (7th Cir.1990); United
States v. Starr, 276 Fed.Appx. 761, 765 (10th Cir.2008); and United States v.
Linares, 367 F.3d 941, 952 (D.C.Cir.2004).
        {¶ 51} Consistent with these federal circuits, I would adopt the
nonconstitutional harmless-error standard of review set forth in Kotteakos v.
United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed.2d 1557, for the purpose of
determining whether improperly admitted other-acts evidence is harmless error
under Crim.R. 52(A).
        {¶ 52} While Kotteakos supplies the proper harmless-error standard of
review, it does not instruct courts on what to consider in determining whether an
error is harmless or not, but some federal circuits have weighed in on that
question. In United States v. Sepulveda, 15 F.3d 1161, 1182 (1st Cir.1993), the
court stated:




                                         20
                                 January Term, 2014




                There is no bright-line rule for divining when particular
         errors that result in a jury’s exposure to improper evidence are
         (or are not) harmless. Rather, a harmlessness determination
         demands a panoramic, case-specific inquiry considering, among
         other things, the centrality of the tainted material, its
         uniqueness, its prejudicial impact, the uses to which it was put
         during the trial, the relative strengths of the parties’ cases, and
         any telltales that furnish clues to the likelihood that the error
         affected the factfinder’s resolution of a material issue.


        {¶ 53} And in United States v. Regan, the Fifth Circuit Court of Appeals
stated that a court’s “issuance of a limiting instruction ‘greatly minimize[s]’ the
risk of undue prejudice posed by an erroneous admission under Rule 404(b).”
725 F.3d 471, 490 (5th Cir.2013), quoting United States v. Crawley, 533 F.3d
349, 355 (5th Cir.2008).
        {¶ 54} Therefore, I would hold that improper admission of other-acts
evidence is harmless error under Crim.R. 52(A) if a “court can say, with fair
assurance, after pondering all that happened without stripping the erroneous
action from the whole, that the judgment was not substantially swayed by the
error.” United States v. Kotteakos, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed.2d
1557. And I would hold that applying this test “demands a panoramic, case-
specific inquiry considering, among other things, the centrality of the tainted
material, its uniqueness, its prejudicial impact, the uses to which it was put during
the trial, the relative strengths of the parties’ cases, * * * any telltales that furnish
clues to the likelihood that the error affected the factfinder’s resolution of a
material issue,” and any limiting instructions pertaining to other-acts evidence.
United States v. Sepulveda, 15 F.3d 1161, 1182.




                                           21
                             SUPREME COURT OF OHIO




        {¶ 55} I would remand this case to the court of appeals to apply this test to
the evidence in this case.
        {¶ 56} Therefore, I respectfully dissent.
                      _______________________________
        O’DONNELL, J., dissenting.
        {¶ 57} Respectfully, I dissent.
        {¶ 58} The parties here seek a determination of whether the admission of
other acts evidence in this case is a constitutional or nonconstitutional error and
clarification as to the appropriate standard of appellate review. The majority, in
my view, conflates the principles that control this case with standards that apply
when the state fails to accord an accused a federally guaranteed constitutional
right, and it second-guesses the credibility determinations made by jurors in this
case.
        {¶ 59} Other acts evidence may be admitted to show proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake
or accident, but cannot be offered to prove the character of an accused in order to
show that the accused acted in conformity therewith. See Evid.R. 404(B) and R.C.
2945.59.
        {¶ 60} Crim.R. 52(A) provides: “Any error, defect, irregularity, or
variance which does not affect substantial rights shall be disregarded.” Similarly,
Evid.R. 103(A) provides that “[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected” and
the party timely objected or made an offer of proof.
                         The Ohio Rule on Harmless-Error
        {¶ 61} Chief Justice Moyer explained the rule for appellate review of
harmless-error this way in State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,
802 N.E.2d 643:




                                          22
                               January Term, 2014




       [I]f the defendant has objected to an error in the trial court, an
       appellate court reviews the error under the “harmless error”
       standard in Crim.R. 52(A)—“a standard significantly more
       favorable to the defendant.” United States v. Curbelo (C.A.4,
       2003), 343 F.3d 273, 286. Under that rule, the government bears
       the burden of demonstrating that the error did not affect the
       substantial rights of the defendant. [United States v.] Olano, 507
       U.S. [725] 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 [1993]; State v.
       Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061,
       ¶ 136 (“Once [the defendant] objected [to the error], the burden
       shifted to the state to demonstrate an absence of prejudice”). * * *
       An appellate court must reverse a conviction if the government
       does not satisfy this burden; unlike Crim.R. 52(B), Crim.R. 52(A)
       is mandatory, not permissive, and thus affords the appellate court
       no discretion to disregard the error. Id. at 735–736, 113 S.Ct. 1770,
       123 L.Ed.2d 508.


(Emphasis sic.) Id. at ¶ 15.
       {¶ 62} This court has earlier specified that to affect the substantial rights
of an accused, “ ‘the error must have been prejudicial: It must have affected the
outcome of the [trial] court proceedings.’ (Emphasis added.)” State v. Fisher, 99
Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 7, quoting United States v.
Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). See also
United States v. Dominguez Benitez, 542 U.S. 74, 81, 124 S.Ct. 2333, 159
L.Ed.2d 157 (2004) (“the standard phrased as ‘error that affects substantial
rights,’ used in Rule 52, has previously been taken to mean error with a
prejudicial effect on the outcome of a judicial proceeding”).




                                        23
                             SUPREME COURT OF OHIO




       {¶ 63} And although we have not quantified the degree of proof needed to
establish harmless error, other jurisdictions with rules analogous to Ohio Crim.R.
52(A) require the prosecution to demonstrate that more likely than not the error is
harmless. See, e.g., State v. Herbel, 296 Kan. 1101, 1110, 299 P.3d 292 (2013);
United States v. Keck, 643 F.3d 789, 798 (10th Cir.2011); United States v.
Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.2005); see also O'Neal v.
McAninch, 513 U.S. 432, 435, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) (explaining
that in a federal habeas action, error is not harmless when “in the judge’s mind,
the matter is so evenly balanced that he feels himself in virtual equipoise as to the
harmlessness of the error”); Dominguez Benitez, 542 U.S. at 83, 124 S.Ct. 2333,
159 L.Ed.2d 157 (requiring an accused asserting plain error to show “a reasonable
probability” that but for the error the outcome would have been otherwise).
                Harmless Error Implicating a Constitutional Right
       {¶ 64} However, in Chapman v. California, 386 U.S. 18, 21, 87 S.Ct. 824,
17 L.Ed.2d 705 (1967), the court clarified that a state harmless error rule is
limited and does not control when the error violates the federal constitutional
rights of an accused:


       The application of a state harmless-error rule is, of course, a state
       question where it involves only errors of state procedure or state
       law. * * * Whether a conviction for crime should stand when a
       State has failed to accord federal constitutionally guaranteed rights
       is every bit as much of a federal question as what particular federal
       constitutional provisions themselves mean, what they guarantee,
       and whether they have been denied.


In its ruling, the court “requir[ed] the beneficiary of a constitutional error to prove
beyond a reasonable doubt that the error complained of did not contribute to the




                                          24
                                 January Term, 2014




verdict obtained,” and it held that “before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless
beyond a reasonable doubt.” Id. at 24. And as the Eighth Circuit Court of
Appeals has noted, the reasonable-doubt standard imposes a stricter test than that
applied to evidentiary errors that do not affect constitutional rights. United States
v. DeAngelo, 13 F.3d 1228, 1233 (8th Cir.1994).
       {¶ 65} Thus, in my view, the law at issue here is well-defined. When
preserved error arises from a question of state procedure or state law and does not
affect a federally guaranteed constitutional right, Crim.R. 52(A) applies, and the
error is harmless if the state can demonstrate that it is more likely than not that the
error did not affect the outcome of the trial. But when a preserved error arises
from the state’s failure to accord a federally guaranteed constitutional right,
Chapman controls, and the state must prove beyond a reasonable doubt that the
error did not contribute to the guilty verdict.
       {¶ 66} Rather than admit that this court has, on occasion, misapplied these
rules and relied on the Chapman standard to review nonconstitutional error, the
majority purports to reconcile our case precedent. First, it seems to require the
accused to show that prejudice “affirmatively appears” on the record, majority
opinion, ¶ 27, the standard for reviewing plain error; a claim of harmless error,
however, requires the state to show that prejudice does not affirmatively appear
on the record. See Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, at
¶ 15; State v. Quarterman, Slip Opinion No. 2014-Ohio-4034, ¶ 16. The majority
then merges the Crim.R. 52(A) inquiry with the Chapman standard and now
requires the state to prove beyond a reasonable doubt that any preserved error did
not contribute to the conviction—presumably even if the error would not have
affected the outcome of the trial. This, in my view, mischaracterizes the law with
respect to nonconstitutional harmless error and further confuses this field of law.




                                          25
                             SUPREME COURT OF OHIO




       {¶ 67} Notably, the parties recognize this confusion and agree that
separate standards of review apply in deciding whether constitutional or
nonconstitutional errors are harmless. They maintain that we need only determine
whether the erroneous admission of other acts evidence is a constitutional or a
nonconstitutional error and then apply the corresponding standard.
                          Review of Other Acts Evidence
       {¶ 68} In Dowling v. United States, 493 U.S. 342, 110 S.Ct. 668, 107
L.Ed.2d 708 (1990), a masked man entered a home in Frederiksted, St. Croix,
Virgin Islands, and robbed the occupant at gunpoint. During a struggle, the
victim, Vena Henry, unmasked the intruder and later identified him as Rueben
Dowling. However, a jury acquitted Dowling of burglary, attempted robbery,
assault, and weapons offenses. The federal government then prosecuted him for a
bank robbery perpetrated by a man wearing a similar mask, and the district court
permitted Henry to testify regarding the robbery at her home in order to identify
Dowling as the bank robber. The Third Circuit Court of Appeals determined that
the trial court had erred in permitting this other acts evidence, and in reviewing
for harmless error, it “explicitly declined to apply the more stringent standard, see
Chapman v. California, 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705]
(1967), applicable to constitutional errors because, according to the court, the
District Court’s mistake was merely evidentiary and not of constitutional
dimension.” Dowling, 493 U.S. at 346-347.
       {¶ 69} On appeal to the Supreme Court, Dowling argued that “the Third
Circuit was wrong when it found that the admission of Henry’s testimony did not
offend the Constitution and therefore declined to apply the Chapman v.
California, supra, harmless-error standard.” Id. at 347.
       {¶ 70} The Supreme Court did not accept that argument and affirmed the
conviction, concluding that “the admission of Ms. Henry’s testimony was
constitutional and the Court of Appeals therefore applied the correct harmless-




                                         26
                                   January Term, 2014




error standard.” Dowling, 493 U.S. at 354. The court first rejected the argument
that the Double Jeopardy Clause precluded the government from eliciting the
other acts evidence. Id. at 348. It then considered whether “the introduction of
this evidence was unconstitutional because it failed the due process test of
‘fundamental fairness.’ ” Dowling, 493 U.S. at 352. The court recognized that


       the introduction of evidence in circumstances like those involved
       here has the potential to prejudice the jury or unfairly force the
       defendant to spend time and money relitigating matters considered
       at the first trial. The question, however, is whether it is acceptable
       to deal with the potential for abuse through nonconstitutional
       sources like the Federal Rules of Evidence, or whether the
       introduction of this type of evidence is so extremely unfair that its
       admission violates “fundamental conceptions of justice.” United
       States v. Lovasco, 431 U.S. 783, 790 [97 S.Ct. 2044, 2048, 52
       L.Ed.2d 752] (1977).


(Footnote omitted.) Dowling, 493 U.S. at 352. The Supreme Court determined
that Henry’s testimony did not violate principles of fundamental fairness,
explaining that the district court’s authority to exclude potentially prejudicial
evidence adequately addressed the risk that a jury will convict the accused on the
basis of inferences drawn from other acts evidence and therefore permitted
Dowling to receive a fair trial.
       {¶ 71} As Dowling demonstrates, the accused may not bootstrap any trial
error in the admission of evidence to the right to a fair trial in order to obtain the
heightened scrutiny that Chapman requires for constitutional errors. Thus, federal
circuit courts treat the admission of other acts evidence as a nonconstitutional
error and do not apply Chapman in these circumstances. See, e.g., United States




                                           27
                            SUPREME COURT OF OHIO




v. Hicks, 575 F.3d 130, 143 (1st Cir.2009); United States v. Corey, 566 F.2d 429,
432 (2d Cir.1977); United States v. McBride, 676 F.3d 385, 400 (4th Cir.2012);
United States v. Corsmeier, 617 F.3d 417, 422 (6th Cir.2010), fn. 3; United States
v. Miller, 673 F.3d 688, 700 (7th Cir.2012); United States v. King, 36 F.3d 728,
733 (8th Cir.1994), fn. 5; United States v. Bailey, 696 F.3d 794, 803 (9th
Cir.2012); United States v. Starr, 276 Fed.Appx. 761, 765 (10th Cir.2008); United
States v. Johnson, 519 F.3d 478, 483 (D.C.Cir.2008).
       {¶ 72} Therefore, because the erroneous admission of other acts evidence
in violation of Evid.R. 404(B) does not violate the United States Constitution, our
review of the record for harmless error requires application of Crim.R. 52(A) and
Evid.R. 103(A) to determine whether the state has demonstrated that the other
acts evidence more likely than not had no effect on the outcome of the trial. See
State v. Lundgren, 73 Ohio St.3d 474, 486, 653 N.E.2d 304 (1995) (“even where a
court abuses its discretion in the admission of evidence, we must review whether
the evidentiary ruling affected a substantial right of the defendant. Evid.R. 103
and Crim.R. 52(A)”).
       {¶ 73} The other acts evidence elicited here—that Morris occasionally
kicked the dog after his wife refused him sex and that he once propositioned his
adult stepdaughter—did not affect the outcome of this trial. First, the trial court
instructed the jury that it could not consider this evidence to prove that Morris
acted in conformity with bad character, and we presume that a jury follows
limiting instructions on the use of other acts evidence. See State v. Williams, 134
Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d 1278, ¶ 23.
       {¶ 74} Second, this other acts evidence is insignificant when compared to
the compelling evidence that he groomed a six-year-old child for molestation—
using a “magic trick” to make his “thumb” turn to Jell-O and then become hard
again—and then sexually abused and raped her over an extended period of time.
In my view, it is not likely that, but for the admission of evidence that Morris




                                        28
                               January Term, 2014




kicked the dog when his wife refused to have sex with him and propositioned his
adult stepdaughter, the jury would not have found him to be guilty of rape of a
child under 13.    Nor am I persuaded by the majority’s vague, conclusory
statement that “there were questions regarding the credibility” of the victim.
Majority opinion, ¶ 30. Credibility of witnesses is a determination made by
jurors, and that is their province. Contrary to the majority, I would respect the
jury’s credibility determination in this case and its finding that the victim’s
testimony proved beyond a reasonable doubt that Morris had raped her. The
verdict is based on that testimony, not evidence about kicking a dog.
       {¶ 75} Accordingly, the admission of other acts evidence in this case is
harmless error, and I would reverse the judgment of the court of appeals and
reinstate Morris’s convictions for the two separate counts of rape.
                      _______________________________
       Dean Holman, Medina County Prosecuting Attorney, and Matthew A.
Kern, Assistant Prosecuting Attorney, for appellant.
       David C. Sheldon, for appellee.
       Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Daniel
Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae the
Cuyahoga County Prosecuting Attorney’s Office.
       John Murphy, Joseph T. Deters, Hamilton County Prosecuting Attorney,
and Rachel Lipman Curran, Assistant Prosecuting Attorney, urging reversal for
amicus curiae the Ohio Prosecuting Attorney Association.
                              __________________




                                         29
