[Cite as State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695.]




           THE STATE OF OHIO, APPELLANT, v. WILLIAMS, APPELLEE.
        [Cite as State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695.]
Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission
        of evidence of other crimes, wrongs, or acts offered to prove the character
        of an accused in order to show that the accused acted in conformity
        therewith, but it does not preclude admission of that evidence for other
        purposes.
 (No. 2011-2094—Submitted September 25, 2012—Decided December 6, 2012.)
       APPEAL from the Court of Appeals for Cuyahoga County, No. 94965,
                        195 Ohio App.3d 807, 2011-Ohio-5650.
                                  __________________
                               SYLLABUS OF THE COURT
Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes the admission
        of evidence of other crimes, wrongs, or acts offered to prove the character
        of an accused in order to show that the accused acted in conformity
        therewith, but it does not preclude admission of that evidence for other
        purposes.
                                  __________________
        O’DONNELL, J.
        {¶ 1} The state appeals from a judgment of the Eighth District Court of
Appeals that reversed the convictions of Van Williams for rape, gross sexual
imposition, kidnapping, and unlawful sexual conduct with a minor, and held,
pursuant to State v. Curry, 43 Ohio St.2d 66, 330 N.E.2d 720 (1975), that other
acts evidence offered to show a scheme, plan, or system is inadmissible unless it
shows the background of the alleged crime or proves the identity of the accused.
State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200 (8th
Dist., en banc), ¶ 50-51. The appellate court determined that our holding in Curry
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precluded the admission of evidence of a prior sexual relationship Williams had
had with a different minor, because the sexual acts of that relationship had been
“chronologically and factually separate occurrences” and the identity of the
accused was not an issue at trial. Id. at 58.
         {¶ 2} Pursuant to Evid.R. 404(B), however, evidence of other crimes,
wrongs, or acts of an accused may be admissible to prove intent or plan, even if
the identity of an accused or the immediate background of a crime is not at issue.
Consequently, evidence that Williams had engaged in sexual relations with a
teenage boy on previous occasions may be admissible to prove that Williams had
a plan to target vulnerable teenage boys, to mentor them, and to groom them for
sexual activity with the intent of sexual gratification.      The rule precludes
admission of evidence of crimes, wrongs, or acts offered to prove the character of
an accused to demonstrate conforming conduct, but it affords the trial court
discretion to admit other acts evidence for any other purpose, and therefore, we
reverse the judgment of the appellate court and reinstate the judgment of the trial
court.
                           Facts and Procedural History
         {¶ 3} Williams met J.H. at the Good Shepherd Baptist Church in East
Cleveland, Ohio, became a mentor to him, as J.H. had no contact with his natural
father and lived with his grandmother, and would often buy him gifts and pay him
to do odd jobs at his home. In 2008, when J.H. was 14, Williams began to
sexually abuse him. During a counseling session at his school, J.H. revealed to
Michael Tesler that Williams had abused him, and as a result, Tesler notified the
Cuyahoga County Department of Children and Family Services.
         {¶ 4} A grand jury subsequently indicted Williams on 12 counts of rape,
12 counts of unlawful sexual conduct with a minor, 12 counts of kidnapping, 24
counts of gross sexual imposition, and one count of intimidation of a crime victim
or witness.




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        {¶ 5} Prior to empaneling a jury, the state moved to admit evidence that
Williams had had a similar relationship with a different teenage boy, A.B., a 16-
year-old member of the high school swim team that Williams coached in 1997. In
support of its motion, the state asserted that the fact that Williams’s relationship
with A.B. paralleled that with J.H. indicated a course of conduct constituting a
common plan, demonstrated a distinct pattern of sexual conduct constituting a
modus operandi, and, by reasonable inference, tended to prove Williams’s intent
to achieve sexual gratification with teenage males. Williams objected to the
admission of the testimony of A.B. and requested a hearing, but the court deferred
the hearing until after trial began.
        {¶ 6} During opening statements, defense counsel told jurors that
Williams had treated J.H. like a son but that J.H. had “betrayed” him and that the
boy had “issues”—had made suicide attempts and liked pornography. Defense
counsel suggested that J.H. had made up the accusation to get out of trouble:
“[J.H.] is in the [school] office perhaps under a disciplinary situation for
something related to inappropriate conduct regarding female students and so
forth.” Defense counsel further stated, “So he may be confused about his sexual
preference. Mr. Williams is not. [J.H. is] in the office in this context being
confronted with his own bad behavior, and this is the first time the evidence will
show that this whole thing about Mr. Williams comes up.”
        {¶ 7} At a hearing, out of the presence of the jury, on the state’s motion to
admit the testimony of A.B., A.B. stated that at the time of his relationship with
Williams, his father did not have an active involvement in his life and he trusted
Williams. He explained that they had had a sexual relationship that lasted until
the end of the school year that included kissing, masturbation, and oral sex in the
high school locker room, as well as a sexual encounter at a swim meet.
According to A.B., Williams received “some type of sexual gratification” when




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he touched A.B.’s genitals.      After transferring to another high school, A.B.
disclosed the relationship to a tutor.
       {¶ 8} Over objection, the court permitted A.B. to testify at trial, but at that
time it also gave the following cautionary instruction: “The evidence [from this
witness] is going to be received for a limited purpose. It’s not going to be
received, and you may not consider it, to prove the character of the Defendant in
order to show that he acted in conformity or accordance with that character.” The
court also permitted Shawana Cornell, a social worker, to testify that Williams
had admitted to her that he had been accused of sexual abuse about 12 earlier but
that the charge in that matter had been reduced to misdemeanor assault. Cornell
further testified that, in response to her question whether he was attracted to men
or women or both, he responded that he was attracted to women.
       {¶ 9} When the state rested, the court dismissed seven counts of rape, 18
counts of gross sexual imposition, five counts of kidnapping, seven counts of
unlawful sexual conduct with a minor, and the intimidation count. In its charge to
the jury at the close of the case, the court repeated its limiting instruction
regarding other acts evidence. Following deliberation, the jury found Williams
guilty of five counts of rape, six counts of gross sexual imposition, seven counts
of kidnapping, and five counts of unlawful sexual conduct with a minor. The
court sentenced him to an aggregate 20-year prison term.
       {¶ 10} Williams appealed, challenging the admission of the testimony of
A.B. and Cornell. Relying on Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, the
appellate court stated that there “are only two situations in which other-acts
evidence is admissible to show a defendant’s ‘scheme, plan, or system’: (1) to
show the background of the alleged crime or (2) to show identity.” (Emphasis
sic.) State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200,
¶ 51. Concluding that identity was not at issue, that the other acts with A.B. were
remote and distinct occurrences, and that the testimony of A.B. and Cornell was




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unduly prejudicial, the court reversed the trial court and remanded the matter for
further proceedings.
       {¶ 11} We accepted the state’s appeal on two propositions of law. The
state claims that other acts evidence is “admissible to show his intent, where
intent is an element of the statute and both acts are committed against teenage
boys of similar ages,” and it also contends that, notwithstanding Curry, “[o]ther
acts evidence demonstrating that a defendant exhibited a pattern of isolating
certain types of victims and then abused a position of authority to engage in
grooming behaviors for the purpose of sexual gratification is admissible to show
his unique, identifiable plan, independent of whether it shows identity.”
       {¶ 12} What the state really argues is that two independent bases exist to
admit the other acts evidence in this case: the intent and the plan of the accused,
i.e., intent of sexual gratification emanating from sexual conduct with teenage
males and a specific plan to target vulnerable teenage boys and groom them for
eventual sexual activity.
       {¶ 13} Williams argues that evidence of his prior sexual relationship with
A.B. is admissible only if it is introduced to prove identity or to establish the
immediate background of the charged offense, claiming that Curry should apply
to Evid.R. 404(B) to limit “plan” evidence to proof of identity or establishment of
the immediate background of an offense.
       {¶ 14} Accordingly, we are asked to consider whether our decision in
Curry, 43 Ohio St.2d 66, 330 N.E.2d 720, which addressed R.C. 2945.59 and
stated that scheme, plan, or system evidence is relevant in two general factual
situations—when the other acts form part of the immediate background of the
alleged act that forms part of the foundation of the crime charged and when the
identity of the perpetrator is at issue—also precludes admission of plan evidence
of other crimes, wrongs, or acts of the accused pursuant to Evid.R. 404(B).




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                               Law and Analysis
       {¶ 15} Evidence that an 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 or that he acted in conformity
with bad character. Curry at 68; State v. Jamison, 49 Ohio St.3d 182, 184, 552
N.E.2d 180 (1990).     The General Assembly, however, has codified certain
exceptions to the common law regarding the admission of evidence of other acts
of wrongdoing. Those exceptions are contained in R.C. 2945.59:


              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.


This court likewise has promulgated Evid.R. 404(B), which states:


              Evidence of other crimes, wrongs, or acts is not admissible
       to prove the character of a person in order to show action in
       conformity therewith. It may, however, be admissible for other
       purposes, such as proof of motive, opportunity, intent, preparation,
       plan, knowledge, identity, or absence of mistake or accident.




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       {¶ 16} We have recognized that Evid.R. 404(B) is in accord with R.C.
2945.59, State v. Broom, 40 Ohio St.3d 277, 281, 533 N.E.2d 682 (1988), and that
the rule and statute each “codify the common law with respect to evidence of
other acts of wrongdoing,” State v. Lowe, 69 Ohio St.3d 527, 530, 634 N.E.2d 616
(1994), and preclude admission of other acts evidence to prove a character trait in
order to demonstrate conduct in conformity with that trait, id.; State v. Hector, 19
Ohio St.2d 167, 174, 249 N.E.2d 912 (1969).
       {¶ 17} While both the statute and the rule adopted the common law rule,
they also carve out exceptions to that common law, and some differences exist
between the statute and the rule. The statute affords the trial court discretion to
admit evidence of any other acts of a defendant in cases where motive or intent,
absence of mistake or accident, or scheme, plan, or system in doing an act is
material. See generally Black’s Law Dictionary 1066 (9th Ed.2009) (“material”
means “[h]aving some logical connection with the consequential facts”). Evid.R.
404(B) contains no reference to materiality. Rather, it precludes the admission of
evidence of crimes, wrongs, or acts offered to prove the character of an accused in
order to demonstrate conforming conduct, and it affords the trial court discretion
to admit evidence of other crimes, wrongs, or acts for “other purposes,” including,
but not limited to, those set forth in the rule. Hence, the rule affords broad
discretion to the trial judge regarding the admission of other acts evidence.
       {¶ 18} In Curry, we interpreted R.C. 2945.59 and stated that “scheme,
plan, or system” evidence is relevant in two general factual situations: those in
which the other acts form part of the immediate background of the alleged act that
forms the foundation of the crime charged in the indictment and those involving
the identity of the perpetrator. Curry, 43 Ohio St.2d at 72, 330 N.E.2d 720. But
we did not limit admissibility to those two situations. Moreover, Curry predated
Evid.R. 404(B), so it did not consider or apply that rule.




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       {¶ 19} Evidence of other crimes, wrongs, or acts of an accused tending to
show the plan with which an act is done may be admissible for other purposes,
such as those listed in Evid.R. 404(B)—to show proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or accident—
and in considering other acts evidence, trial courts should conduct a three-step
analysis.
       {¶ 20} 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.
       {¶ 21} The state offered the testimony of A.B. to demonstrate the motive,
preparation, and plan of the accused to target teenage males who had no father
figure and to gain their trust and confidence for the purpose of grooming them for
sexual activity with the intent to be sexually gratified. See United States v.
Chambers, 642 F.3d 588, 593 (7th Cir.2011) (“Grooming refers to deliberate
actions taken by a defendant to expose a child to sexual material; the ultimate goal
of grooming is the formation of an emotional connection with the child and a
reduction of the child’s inhibitions in order to prepare the child for sexual
activity”); United States v. Johnson, 132 F.3d 1279, 1283 (9th Cir.1997), fn. 2
(“ ‘Shaping and grooming’ describes the process of cultivating trust with a victim
and gradually introducing sexual behaviors until reaching the point of
intercourse”).




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       {¶ 22} As to the first step of our three-part test for the admission of other
acts evidence, A.B.’s testimony 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; if believed by the jury, such testimony could
corroborate the testimony of J.H. Notably, A.B.’s testimony also rebutted the
suggestion offered by the defense during opening statements that J.H. had falsely
accused Williams of abuse with the hope of getting out of trouble at school and
the suggestion that Williams was sexually attracted to women. A.B.’s testimony
that Williams received “some type of sexual gratification” also is relevant to show
that Williams’s intent was sexual gratification. See R.C. 2907.01; 2907.05(A)(1).
       {¶ 23} The next step relates to whether the evidence is presented to prove
the accused’s character in order to show that the conduct was in conformity with
that character. In this case, contrary to the view expressed by the court of appeals,
the state did not offer the evidence of the Williams-A.B. relationship to show that
abusing J.H. was in conformity with Williams’s character. In fact, the trial court
gave two limiting instructions that this evidence was not being offered to prove
Williams’s character—one just prior to the testimony of A.B., and one prior to
deliberation. We presume the jury followed those instructions. See State v.
Garner, 74 Ohio St.3d 49, 59, 656 N.E.2d 623 (1995); Pang v. Minch, 53 Ohio
St.3d 186, 195, 559 N.E.2d 1313 (1990).
       {¶ 24} Third, we consider whether the probative value of the other acts
evidence of the prior relationship with A.B. is substantially outweighed by the
danger of unfair prejudice. This evidence is 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 A.B.’s testimony, and A.B. corroborated J.H.’s
testimony about the sexual abuse, which had been denied by Williams. Thus,
Evid.R. 404(B) permitted admission of evidence of Williams’s prior crime




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because it helped to prove motive, preparation, and plan on the part of Williams.
The prejudicial effect did not substantially outweigh the probative value of that
evidence.
                                      Conclusion
        {¶ 25} Evid.R. 404(B) is in accord with R.C. 2945.59 in that it precludes
the admission of evidence of other crimes, wrongs, or acts offered to prove the
character of an accused in order to show that the accused acted in conformity
therewith, but it does not preclude admission of that evidence for other purposes,
e.g., to show proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. 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.
Accordingly, the judgment of the appellate court is reversed, and the judgment of
the trial court is reinstated.
                                                                 Judgment reversed.
        O’CONNOR, C.J., and LUNDBERG STRATTON, CUPP, and MCGEE BROWN,
JJ., concur.
        LANZINGER, J., concurs in judgment only.
        PFEIFER, J., dissents.
                                  __________________
        PFEIFER, J., dissenting.
        {¶ 26} After reviewing the record in this case, I find that the Eighth
District Court of Appeals, sitting en banc, got it right. It concluded that other-acts
testimony against Van Williams had been offered for the express purpose of
proving the bad character of the defendant in order to demonstrate that his
conduct with regard to J.H. was in conformity with his prior bad acts.
        {¶ 27} The court of appeals also stated:




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                 There is no doubt that A.B.’s [other-acts] testimony
       coupled with the social worker’s statements unfairly prejudiced
       Williams. * * * [Because] no physical evidence of sexual abuse
       was found[,] [t]he case essentially hinged on the credibility of the
       witnesses. In cases such as these, there is a real risk that a jury will
       believe that if Williams did it once, he must have done it again.
       That is the danger cautioned of and protected against by Evid.R.
       403 and 404. Therefore, the trial court erred in finding that the
       probative value of A.B.’s testimony outweighed any prejudicial
       effect.


State v. Williams, 195 Ohio App.3d 807, 2011-Ohio-5650, 961 N.E.2d 1200 (8th
Dist.; en banc), ¶ 64.
       {¶ 28} The majority opinion only cursorily addresses whether the other-
acts testimony unfairly prejudiced Williams, even though that is an essential part
of an other-acts analysis. Huddleston v. United States, 485 U.S. 681, 108 S.Ct.
1496, 99 L.Ed.2d 771 (1988). I find a clear violation of Evid.R. 404(B) and
would therefore affirm the judgment of the court of appeals. I dissent.
                               __________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and
Matthew E. Meyer and T. Allan Regas, Assistant Prosecuting Attorneys, for
appellant.
       Timothy Young, Ohio Public Defender, and Stephen A. Goldmeier,
Assistant State Public Defender, for appellee.
       Michael DeWine, Attorney General, Alexandra T. Schimmer, Solicitor
General, and Peter K. Glenn-Applegate, Deputy Solicitor, urging reversal for
amicus curiae, Ohio Attorney General.




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