State v. Davis

• Decision Date: 29 December 1989
• Docket Number: No. CA88-09-017,CA88-09-017
• Citation: 64 Ohio App.3d 334,581 N.E.2d 604
• Parties: The STATE of Ohio, Appellee, v. DAVIS, Appellant.
• Court: Ohio Court of Appeals

Page 334

64 Ohio App.3d 334

581 N.E.2d 604

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

No. CA88-09-017.

Court of Appeals of Ohio, Twelfth District, Preble County.

Decided Dec. 29, 1989.

Wilfrid G. Dues, Pros. Atty. and Rebecca J. Ferguson, Eaton, for appellee.

John H. Rion & Associates and John H. Rion, Dayton, for appellant.

KOEHLER, Judge.

In March 1988, the then fourteen-year-old daughter of defendant-appellant, Michael T. Davis, confided in school friends that she had been sexually attacked and molested by her father. These conversations were reported to a high school guidance counselor who contacted the Preble County Children's Services Department to initiate an investigation of the allegations.

Appellant was subsequently indicted on two counts of rape per R.C. 2907.02(A)(2) and two counts of sexual battery per R.C. 2907.03(A)(5). After a trial by jury held in the Preble County Court of Common Pleas on August 22 through August 23, 1988, appellant was found guilty as charged. Appellant thereafter timely filed a notice of appeal to this court and now submits the following two assignments of error for our consideration. First Assignment of Error

"The inclusion of prejudicially extraneous testimony denied appellant a fair trial as guaranteed him by the due process clause of the Fourteenth Amendment of the United States Constitution and Article I, Section 10 of the Ohio Constitution."

Second Assignment of Error

"Appellant was denied a fair trial by the admission of expert opinions in areas in which the witness was not qualified as an expert nor permitted by law to testify."

It is alleged that on an occasion in either August or September 1987, appellant entered his daughter's bedroom and forced her to perform fellatio. A second incident was alleged to have occurred in March 1988 while appellant's daughter was alone in her room. On this occasion, appellant fondled his daughter before and during vaginal intercourse and proceeded to ejaculate inside her. The daughter's original version of this incident related that the act took place while a friend of her father's also fondled her and watched while her father had forced sexual intercourse with her. However, she later acknowledged that she had fabricated the presence and participation of another person during the incident. No physical examination of appellant's daughter was performed. It was believed the time lag from the incident to the examination would preclude discovery of any sign of sexual or physical abuse.

In his first assignment of error, appellant asserts that testimony from prosecution witnesses concerning other crimes, wrongs, or acts independent of the indicted offense are not properly admissible pursuant to the Ohio Rules of Evidence and R.C. 2907.02(D). At trial, testimony was presented as to intrafamily relations and the constant use of physical discipline by appellant. Additionally, testimony concerning the two incidents of alleged sexual battery and rape between appellant and his daughter were admitted at trial, as well as evidence of alleged continual sexual contact between the parties over a two-year period.

R.C. 2907.02(D) sets forth the limited admissibility of a defendant's sexual activity as follows:

" * * * Evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or is admissible against the defendant under section 2945.59 of the Revised Code, and only to the extent that the court finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value."

R.C. 2945.59 maintains:

"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." (Emphasis added.)

Therefore, under Ohio's "rape shield law," evidence of specific instances of the defendant's sexual activity, opinion evidence of the defendant's sexual activity, and reputation evidence of the defendant's sexual activity are proscribed unless they involve evidence of the origin of semen, pregnancy, or disease, the defendant's past sexual activity with the victim, or are admissible under R.C. 2945.59.

Testimony received at trial concerning prior sexual contact between appellant and his daughter is relevant and material in the present case since such conduct constitutes, in part, those alleged acts which form the foundation of the crime as charged. This evidence of prior sexual history is not collateral evidence introduced to impeach the character of appellant or to show that appellant has the tendency to engage in crimes of this magnitude. Instead, the allegation of continual sexual abuse during a two-year period of time is the basis of the crime as charged, thereby requiring this testimony to be admitted. See State v. Curry (1975), 43 Ohio St.2d 66, 72 O.O.2d 37, 330 N.E.2d 720; R.C. 2907.02(D); R.C. 2945.59.

The "other act testimony" elicited at trial by the prosecution from witnesses concerning the drinking behavior and temperament of appellant was utilized to prove that appellant had a character trait or propensity to commit the indicted crimes of rape and sexual battery, rather than for the purpose of showing a scheme, plan, or system of conduct. See Evid.R. 404(B).

It is a well-established rule of evidence that the prosecution in a criminal trial may not present evidence that a defendant has committed other crimes, wrongs or acts independent of the offense for which he is on trial in order to demonstrate that the defendant has a propensity for crime or that his character is in conformity with the other acts. Evid.R. 404(B); State v. Mann (1985), 19 Ohio St.3d 34, 19 OBR 28, 482 N.E.2d 592. Therefore, evidence of previous or subsequent criminal or quasi-criminal acts, wholly independent of the offense for which defendant is charged, is inadmissible at trial. Whiteman v. State (1928), 119 Ohio St. 285, 164 N.E. 51; State v. Hector (1969), 19 Ohio St.2d 167, 48 O.O.2d 199, 249 N.E.2d 912.

However, evidence of other crimes or wrongs may be admitted when such acts are so inextricably intertwined with the crime as charged that proof of one involves the other, explains the circumstances thereof, or tends logically to prove any element of the crime charged. State v. Wilkinson (1980), 64 Ohio St.2d 308, 317, 18 O.O.3d 482, 488, 415 N.E.2d 261, 269.

In the case sub judice, we are convinced that the prosecution improperly elicited "other act" testimony in order to show defendant had a character trait or propensity to commit the crimes as charged, which is strictly forbidden pursuant to Evid.R. 404(B). Further, appellant did not place his character in issue by having character or reputation witnesses testify as to his "good character," which would have justified the prosecution's use of the prior bad acts.

In Curry, supra, the Ohio Supreme Court held that "other act" testimony in order to be admissible under the scheme or plan exception, must: (1) illustrate the immediate background of the crime charged, such that without this testimony it would be virtually impossible to prove that the accused committed the crime; or (2) establish the identity of the perpetrator. On both counts, this "other act" testimony fails to be relevant and material to the indicted charges of rape and sexual battery.

The prosecution improperly introduced "other act" testimony for the purpose of proving a character trait or propensity of appellant to commit the charged crimes. To this end, appellant was accused of having a drinking problem and being unable to keep steady employment. Further, the record also reveals that the prosecution painted appellant as a child abuser who was disliked by his daughters. Clearly, the total cumulative effect of this unwarranted and improper testimony severely prejudiced appellant. The use of "other act" testimony, elicited by the prosecution, amounts to prejudicial error requiring this court to grant appellant the opportunity for a new trial. Accordingly, appellant's first assignment of error is well taken.

Appellant's second assignment of error maintains that clinical counselor Barbara Evans should not have been permitted to testify as to whether, in her opinion, appellant's daughter was a sexually abused child. At trial, Evans testified that she felt, based upon her training, experience, and interviews, that the child had been sexually abused. Furthermore, initial falsities about the alleged sexual abuse were deemed by this expert to be common and ordinary in approximately ninety-eight percent of cases. Appellant contends that Evans's testimony should not have been admitted at trial since such testimony amounted to no more than Evans's judgment of the credibility of the complaining witness, which, according to appellant, is not a proper subject for expert testimony.

Evid.R. 702 provides that:

"If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." (Emphasis added.)

Therefore, in order for expert testimony to be properly admissible, the testimony...