State v. Curry

• Decision Date: 02 July 1975
• Docket Number: No. 74-347,74-347
• Citation: 43 Ohio St.2d 66,72 O.O.2d 37,330 N.E.2d 720
• Parties: , 72 O.O.2d 37 The STATE of Ohio, Appellant, v. CURRY, Appellee.
• Court: Ohio Supreme Court

Page 66

43 Ohio St.2d 66

330 N.E.2d 720, 72 O.O.2d 37

The STATE of Ohio, Appellant, v. CURRY, Appellee.

No. 74-347.

Supreme Court of Ohio.

July 2, 1975.

Syllabus of the Court

Evidence of other acts of a criminal defendant is admissible, pursuant to R.C. 2945.59, only if one or more of the matters enumerated in the statute is a material issue at trial and only if such evidence tends to show the material enumerated matter.

In September 1972, the Cuyahoga County Grand Jury returned an indictment against appellee, charging him with violating R.C. 2905.03 (statutory rape). The indictment alleged, in part, that '* * * Delmer Curry (appellee) on or about the 8th day of July 1972 * * * being then and there a male person of the age of eighteen years or over, did unlawfully carnally know and abuse one Marie * * * with her consent, she * * * then and there being a female person under the age of sixteen years, to wit: 13 years of age * * *.' Appellee entered a plea of not guilty and a jury trial was subsequently held.

The trial testimony established that on the evening of July 7, 1972, Marie agreed to babysit for Martha Dotts' daughter. Marie arrived at the Dotts' residence, accompanied by a friend, Cathy. Dotts left and went to a bar, where she unexpectedly met appellee, whom she had previously known. Appellee drove Dotts home, arriving there at approximately 4:00 in the morning of July 8. At Dotts' request, appellee agreed to drive Marie and Cathy to Marie's home. The two girls entered the car, with Cathy sitting next to the passenger's door and Marie sitting next to appellee, and appellee drove away. What transpired during the ensuing trip is sharply contested.

Marie's testimony described the following occurrences. Approximately half way to Marie's home, appellee deviated from the planned route. In response to Marie's query, he replied that 'we are going for a ride.' Appellee proceeded to an industrial area, where he stopped the car and told Cathy '* * * to take a walk.' Cathy exited the automobile, took its license number and left. Appellee then drove the car a short distance to an alley, parked and against Marie's will, had intercourse with her.

Cathy's account of the ride with appellee generally corroborated Marie's testimony. Additionally, Cathy testified that after leaving appellee's car, she ran to a gas station and telephoned the police. A police officer verified being dispatched, at approximately 4:45 on the morning of July 8, to a gas station to meet a female juvenile concerning a possible rape and abduction.

The prosecution's version of the early morning ride was diametrically opposed by the appellee. He testified that he proceeded to take the girls home, and, while stopped at a red light, a car pulled abreast of him. Cathy spoke briefly to the boy who was driving, and then told appellee to follow the other car. Appellee complied, following the automobile into a parking lot. Cathy, stating that her boyfriend was in the other car, left appellee's vehicle and went with the other driver. Thereafter, appellee took Marie directly home without incident.

The trial judge charged the jury on both carnal knowledge of a female under age sixteen and the lesser included offense of attempt to have carnal knowledge of a female under age sixteen. The jury found appellee guilty of the attempt, and he was subsequently sentenced to the penitentiary.

The Court of Appeals reversed the judgment of conviction and remanded the cause to the trial court for further proceedings. The cause is now before this court pursuant to the allowance of a motion for leave to appeal.

John T. Corrigan, Prosecuting Atty. and Robert A. Ruggeri, Cleveland, for appellant.

Sidney R. Davis, Cleveland, for appellee.

C. WILLIAM O'NEILL, Chief Justice.

During appellee's trial, the trial judge admitted, over appellee's objection, evidence that on December 22, 1972, appellee molested an eleven-year-old girl. In admitting such evidence, the trial judge purported to rely on R.C. 2945.59. The admission of this evidence formed the basis for appellee's sole assignment of error in the Court of Appeals. That court held that the evidence was both inadmissible and highly prejudicial to appellee's case, and therefore its admission warranted a reversal and remand. This court agrees with the Court of Appeals, and hence affirms its judgment.

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. 1 Underhill's Criminal Evidence (6 Ed.), 595, Section 205. Although such evidence may, in some cases, logically tend to establish that a criminal defendant committed the act for which he stands accused, the evidence is considered legally irrelevant for the reasons enumerated in Whitty v. State (1967), 34 Wis.2d 278, 292, 149 N.W.2d 557, 563:

'* * * (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated; and (4) the confusion of issues which might result from bringing in evidence of other crimes.'

Therefore, evidence which tends to show that an accused has committed another crime wholly independent of the offense for which he is on trial is generally inadmissible. State v. Burson (1974), 38 Ohio St.2d 157, 311 N.E.2d 526; State v. Hector (1969), 19 Ohio St.2d 167, 249 N.E.2d 912; Whiteman v. State (1928), 119 Ohio St. 285, 164 N.E. 51; 1 Underhill's Criminal Evidence, supra; 1 Wharton's Criminal Evidence (13 Ed.) 528, Section 240.

As is the case with most general rules, the rule denying admissibility of evidence of other crimes is subject to certain exceptions. The only exceptions relevant in the present case are those codified 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.'

In discussing the application of R.C. 2945.59, this court noted, in State v. Burson, supra, 38 Ohio St.2d 157, at page 158, 311 N.E.2d at 528, that '* * * evidence of other acts of a defendant is admissible only when it 'tends to show' one of the matters enumerated in the statute and only when it is relevant to proof of the guilt of the defendant of the offense in question.'

The matters enumerated in R.C. 2945.59 are the defendant's motive, intent, absence of mistake or accident and scheme, plan or system in allegedly doing the act which forms the factual basis of the crime for which he is on trial.

The present appeal involves appellee's trial on an indictment for statutory rape. In 1972, Ohio's statutory rape statute was R.C. 2905.03, the first paragraph of which provided:

'No person eighteen years of age or over shall carnally know and abuse a female person under the age of sixteen years with her consent.'

In paragraph one of the syllabus of State v. Daniels (1959), 169 Ohio St. 87, 157 N.E.2d 736, this court held:

'Consent of the victim is not an essential element of the crime of statutory rape specified in Section 2905.03, Revised Code * * *.'

Hence, there are three elements to the crime of statutory rape: (1) the defendant must have been 18 years of age or older at the time of the alleged offense; (2) the defendant must have had intercourse with the prosecuting witness; and, (3) the prosecuting witness must have been under the age of 16 at the time of the alleged offense.

The trial judge charged the jury on, and the jury convicted appellee of, the lesser included offense of attempted statutory rape, a violation of R.C. 2905.04. The elements of this crime are substantially identifical to the elements of statutory rape, with the one obvious exception that the prosecution need only show that the defendant attempted to have sexual intercourse with the prosecuting witness.

In the instant case, the age elements of statutory rape and attempted statutory rape were indisputably proved at trial.

The only questions at issue, therefore, were whether appellee had or attempted to have sexual intercourse with Marie on the morning of July 8, 1972. Recognizing that these integrally related questions were the only material elements in dispute, it is necessary to determine whether any of the matters enumerated in R.C. 2945.59 (motive, intent, absence of mistake or accident, or scheme, plan or method of doing an act) were relevant at appellee's trial, and, if so, whether the prosecution's 'other acts' testimony tended to prove that relevant enumerated matter.

'Motive' has been defined by this court as '* * * a mental state which induces an act.' Shelton v. State (1922), 106 Ohio St. 243, 248, 140 N.E. 153, 154. Another court has described it as '* * * the moving power which impels * * * action for a definite result.' People v. Molineux (1901), 168 N.Y. 264, 297, 61 N.E. 286, 296. Since it is assumed...