State v. Morris
| Decision Date | 20 November 2014 |
| Docket Number | No. 2013–0251.,2013–0251. |
| Citation | 24 N.E.3d 1153,2014 Ohio 5052,141 Ohio St.3d 399 |
| Parties | The STATE of Ohio, Appellant, v. MORRIS, Appellee. |
| Court | Ohio Supreme Court |
Dean Holman, Medina County Prosecuting Attorney, and Matthew A. Kern, Assistant Prosecuting Attorney, for appellant.
David C. Sheldon, Medina, for appellee.
Timothy McGinty, Cuyahoga County Prosecuting Attorney, and Daniel Van, Assistant Prosecuting Attorney, urging reversal for amicus curiae Cuyahoga County Prosecuting Attorney's Office.
John Murphy ; and Joseph T. Deters, Hamilton County Prosecuting Attorney, and Rachel Lipman Curran, Assistant Prosecuting Attorney, urging reversal for amicus curiae Ohio Prosecuting Attorneys Association.
{¶ 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 2010-Ohio-4282, 2010 WL 3528992. 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.
{¶ 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.
{¶ 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.
{¶ 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.
{¶ 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 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
{¶ 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.
(Emphasis added.)
{¶ 15} In his closing, defense counsel addressed Morris's propositioning of S.K.'s sister by saying, 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.
{¶ 17} After the closing arguments concluded, the trial judge gave the jury the following instruction:
The jury convicted Morris of both counts of rape.
{¶ 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, 2010 WL 3528992, 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...
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